As soon as health care reform passed, just about every single Republican Attorney General said they were going to appeal the bill as unconstitutional and fight it all the way to the Supreme Court of Reactionary Dunces.
They are going to use two different modes of attack.
1. State’s rights. An argument that state’s rights trumps the ability of the federal government to legislate in this area and that in this area, if not in all others, state law trumps federal law.
2. The Commerce Clause of the Constitution.
1. Reactionaries all down through American history, most spectacularly White Southern racists, have rallied behind the phantom of state’s rights. State’s rights is the fetish of the rightwing, typically racist and often Southern Right. That’s it’s now a fetish of the entire Republican Party indicates how neo-Confederatism and the ideology of White Southern racism now frankly define the GOP as a whole.
The states’ rights thing is a red herring. Segregationists brought it up all through the civil rights struggle, and they lost every time. To be honest, this issue was settled with the signing of the Constitution itself, where it was flatly written out that federal law in general trumps state law. This battle is over before it’s started.
2. The Commerce Clause. The problem is that the 9th Amendment, I believe, crucially assigns the Feds the right to regulate interstate commerce. Luckily for Big Statists like me, the Feds have used this legalism endless times to regulate everything under the sun and override state laws.
The crucial battle was fought in the 1830’s under Andrew Jackson. The details elude me, but the Commerce Clause state’s righters went down, and ability of the Feds to regulate interstate commerce with an expansive definition thereof was enshrined forever after. The Right has been bringing up “Commerce Clause!” endlessly ever since, and they get spanked down every time.
So, one battle was lost in 1789 and the other around 1834. This fight looks like a real loser. On the other hand, this Supreme Court is just reactionary nutty enough that I’m a bit worried. They’d be quite willing to toss a century of in stare decisis on its head if they so chose. But something tells me that they won’t.
As an example of how nuts this Republican Party is, I believe that every single Republican legislator, even the most liberal ones on the Northeast, is on record for repeal of this meager health reform bill.
Here in California, the only Republicans who get anywhere are quite liberal. Carly Fiorina and Tom Campbell are two classic California liberal Silicon Valley Republicans. I was shocked to hear that this year both of them were at Tea Party gatherings cheering the loons on, and both screeched the day after Health Care Reform was signed that they were going to repeal it or die trying.
This isn’t your father’s GOP.
Even I grew up under Nixon, Ford and Rockefeller Republicans. There’s something seriously unhinged about the Republican Party, and America, these days. Fully 1/3 Americans say they are Tea Party supporters. For the past 30 years, the GOP has been getting more and more wack with each passing year.
When I was a kid in California in the 1960’s, your everyday, average 2010 Republican was known at that time as a “rightwing nut.” They were the Goldwaterites and the John Birchers. They were treated with a mix of outrage, derision and contempt. Now the Goldwaterites and the Birchers own the party, and everyone else has long gone home. Even worse, 2010 Republicans almost make Barry Goldwater look like a moderate in some ways.
Things are getting really weird.