Ten Miles Square


March 28, 2012 1:09 PM Your Restrained, Non-Activist Conservative Jurisprudence

By Jonathan Zasloff

From Jon Cohn’s report:

Alito seemed particularly concerned that, because of the mandate, young, healthy people would have to pay more for their insurance, because they would effectively be subsidizing the sick. In a direct response to the government’s argument that the law’s minimum coverage requirement is “necessary and proper,” Scalia responded that it was clearly necessary but not proper - and that government could avoid the problems of the insurance market by simply not requiring insurance companies to cover people regardless of pre-existing condition, as the law will do.

Note that neither of these are legal arguments in the way that they have been understood for the last eighty years. This is basically Alito and Scalia saying that it isn’t constitutional to have social insurance. We should cut the garbage: these guys are hacks, pure and simple.

I’m actually a little surprised that anyone thought that either of these guys would vote to uphold.

[Cross-posted at The Reality-Based Community]

Jonathan Zasloff is a professor of law at the University of California, Los Angeles.


  • BuffOrpington on March 28, 2012 1:54 PM:

    Alito, no. But there's at least a theoretical argument that Scalia might uphold in view of his opinion in the medical marijuana case (Raich). But that would require some degree of intellectual consistency, not a visceral and subjective reaction to the subject matter involved, i.e, federal restrictions on marijuana good, federal regulation of health care bad. And Scalia never has been adept at concealing his gut prejudices.

  • Crissa on March 29, 2012 1:28 PM:

    They serve at the pleasure of our President. If their views or work is such that they don't do it or have such disregard for our constitution as written, they need to go.

    It's time to fire someone who provides me with a service, as Romney would say.