Jack Balkin has an excellent post at Balkinization about the deeper significance of the Supreme Court's decision in King v. Burwell:
This gets into the kind of discussion that fascinates me because it reflects on my basic question: Why do we form societies?
My answer is, of course, "To take care of each other." The ACA, as an aspect of that "common good" criterion for a successful society, is, indeed, one of those foundational pieces of legislation -- as Balkin terms it, a "framework" statute -- that describe the particulars of how we are going to implement part of that taking care of each other.
Balkin's post is worth reading in its entirety. It delves into the history and sometimes gets a little technical, but it's fascinating. The key concept:
I think these ideas have ramifications for other cases -- Obergefell v. Hodges being of major concern right now. If the Court rules, as most expect it to, in favor of marriage equality, it's going to have repercussions across the spectrum of civil rights, and I don't think it's going to matter how narrowly the opinion is written: once the Court has decided that, for purposes of the fundamental right of marriage, "queers are people, my friend," it's going to be very difficult to exclude us from the exercise of other rights. There's no law in these cases that could be considered a "framework" -- that's the Fourteenth Amendment. What's important here is the Court restating that, yes, the Fourteenth Amendment, when it says "all persons," means exactly that.
But on a deeper level, King v. Burwell had constitutional overtones. The Affordable Care Act was no ordinary statute-- it was a framework statute like the Social Security Act, the Wagner Act, Medicare, and the Civil Rights Act of 1964. It significantly changed the terms of governance in the United States by reorganizing the health care industry and creating a new guarantee of (virtually universal) health insurance.
This gets into the kind of discussion that fascinates me because it reflects on my basic question: Why do we form societies?
My answer is, of course, "To take care of each other." The ACA, as an aspect of that "common good" criterion for a successful society, is, indeed, one of those foundational pieces of legislation -- as Balkin terms it, a "framework" statute -- that describe the particulars of how we are going to implement part of that taking care of each other.
Balkin's post is worth reading in its entirety. It delves into the history and sometimes gets a little technical, but it's fascinating. The key concept:
Framework statutes that are central to the American social contract-- like Social Security and Medicare, have a special status in the American system of government, and courts understand this implicitly. (That is what made the Court's decision in Shelby County v. Holder so important and so shocking-- it gutted a key part of framework statute from the Civil Rights Revolution--the Voting Rights Act).
In NFIB v. Sebelius, the Supreme Court decided that the creation of a new framework statute designed to guarantee universal health care was a legitimate innovation in American government.
I think these ideas have ramifications for other cases -- Obergefell v. Hodges being of major concern right now. If the Court rules, as most expect it to, in favor of marriage equality, it's going to have repercussions across the spectrum of civil rights, and I don't think it's going to matter how narrowly the opinion is written: once the Court has decided that, for purposes of the fundamental right of marriage, "queers are people, my friend," it's going to be very difficult to exclude us from the exercise of other rights. There's no law in these cases that could be considered a "framework" -- that's the Fourteenth Amendment. What's important here is the Court restating that, yes, the Fourteenth Amendment, when it says "all persons," means exactly that.
2 comments:
And now we can just call it "marriage"
Some of us have been doing that all along.
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