Trumpism Lives On In Court
Terry H. Schwadron
Nov. 12, 2020
Even as the post-election drama continues to spill out, we’re watching the unelected Supreme Court hear arguments this week in cases that show that the Trumpism will continue well beyond votes, challenges and recounts.
Regardless of outcome, that these cases even reached this point was as a result of Trumpism. With lifetime appointments, there is no reason to believe there will be a change of heart anytime soon.
Yesterday, the Court took up the legality of the Affordable Care Act, a target for Donald Trump’s obsession with anything passed by under the Barack Obama years, and without a substitute should the Court toss the whole law. Last week, the Court considered a case in which the issue was once again whether religious belief of a social-service agency outweighs the rights of same-sex couple to take in foster children.
Neither will have an immediate decision, but both illustrate just why the fight over Trump’s judicial nominees played to such drama. The two cases are among the first for newly installed Justice Amy Coney Barrett, giving conservatives on the Court a 6–3 majority. And, before we forget, Trump directed that the federal government go into court to overturn its own law on Obamacare.
It is totally possible that this conservative-leaning Court, claiming itself to be more “textual” and less willing to make law through its interpretations, will do exactly that in denying upwards of 20 million Americans of fuller health care and opening the door to further erosion of same-sex unions.
Whatever the final results of elections, confirmation hearings, unsubstantiated claims of voter fraud by counting mail ballots, Trumpism will live on in a Joe Biden presidency. And as always, in neither case is it ever effectively argued that the outcome will have a serious practical effect on the country.
The Obamacare Challenge
As has been flagged early on, this case is an attempt to strike down the entire 2010 health care law, based on the idea that we cannot mandate the purchase of health care insurance. The then-Republican majority in Congress in 2017 reduced penalties for non-purchase to zero for forgoing insurance, opening the door for lower courts to rule that without a “tax,” there is no longer any legal authority for the mandate.
Without the mandate, the question is whether the rest of the law, which also requires such things as insurers covering pre-existing health conditions, should be thrown out Republicans have never come up with legislation for an alternative, though the campaign talk on all sides is big and fat with undelivered promise.
Questions from five justices, including Justice Brett M. Kavanaugh in particular, seemed to favor treating that mandate question as “severable” from the rest of the law. “I tend to agree with you that this is a very straightforward case for severability under our precedents meaning that we would excise the mandate and leave the rest of the act in place,” Kavanaugh said.
Nevertheless, it remains far from certain, given both legal complexities and practical effects, that the Court would eliminate the law altogether.
The lawsuit — brought by Texas and other GOP-led states, and the justices must first decide whether the states even have a basis to bring the lawsuit. If they agree the states have standing, then they’d have to decide whether the law’s mandate to buy health coverage is still constitutional without a penalty to enforce it.
And only if they rule the mandate is unconstitutional would they have to consider whether the rest of the law — including its consumer protections, subsidized marketplaces and Medicaid expansion — can stand without it.
The Challenge to Same-Sex foster homes
At stake in this case was whether faith-based groups voluntarily partnering with the government — the city of Philadelphia in this case — to run a taxpayer-funded program, must work within government guidelines to ensure everyone is being served, even at the expense of others’ rights. The arguments were sharp, and indeed, seemed to air ways to clip the Court’s precedent case granting rights for same-sex marriage (Obergefell v. Hodges).
Specifically, the case tested whether a Catholic social services agency can continue to benefit from a government contract while refusing those services to same-sex couples — on religious grounds. It’s called Fulton v. City of Philadelphia, and it looks like a test of how far this Court will take religious freedom to step on competing legal freedoms. Catholic Social Services had a contract from Philadelphia to provide services to foster youth, including screening foster parents. When the city learned CSS insisted on following its own religious screening criteria — which rejected same-sex couples as foster parents — the city didn’t renew its contract. CSS then sued the city, and it has gone through various legal twists and turns since.
The lawyer for the agency said that, actually, no gay couple had ever approached it for foster placement, and that such a request would have been referred elsewhere. But the question itself captures the culture clash that this nation is reflecting.
Clearly, the implications go beyond the foster care system, the ACLU believes. Local, state, and federal governments often give taxpayer dollars to private agencies to provide government services for such issues as refugee resettlement and housing, child care and public housing.
Naturally, many faith-based organizations do not discriminate and follow practices to put the needs of those receiving their services first. But that’s not a legal argument.
Over time, the Supreme Court has said that governments can’t deny an organization funding just because the group is religious, maintaining equality in competition for government funds. That makes sense.
What We Know
So, we know these things: In either case, it is the vulnerable who will suffer. We live in a society in which providing services for all seems to come at a price of maintain freedom for some.
There is a place here for common sense. If we accept that to drive, you must have a license — and auto insurance — why can’t we see that it makes sense that everyone has some form of health insurance. We’re in the middle of an airborne pandemic. And, the alternative here is that taxpayers get the bill when the uninsured go to hospital emergency rooms for treatment.
And if religious social service agencies don’t want to provide for all taxpayers equally, they shouldn’t sign up to provide tax-paid services.
Perhaps the wealthy can choose where they get such services; the poor do not.
The insistence of Making Some of America Great has just changed addresses to the Supreme Court. Trump lives on.
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