Friday, June 29, 2012

Scalia's true nature

There are plenty of places you can read about the decision yesterday on the Affordable Care Act, but there's one observation worth making.

 Over at Slate Matt Yglesias has a story about Scalia's dissent (my very favorite sentence to read: Scalia, J., dissenting) and how he arrives at the conclusion that a number of ancillary provisions, such as a provision deregulating dental services, in the Act are also unconstitutional.

  Some provisions, such as requiring chain restaurants to display nutritional content, appear likely to operate as Congress intended, but they fail the second test for severability. There is no reason to believe that Congress would have enacted them independently. The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous. We have no reliable basis for knowing which pieces of the Act would have passed on their own. It is certain that many of them would not have, and it is not a proper function of this Court to guess which.

 This paragraph is simply more evidence that everything Scalia does is unhinged from the Constitution.

 Many states have a legislative rule or constitutional provision known as the title-object rule, which generally says something like "Every bill must be directed to a single object, which shall be expressed in its title". It is specifically intended to prevent Christmas tree legislation. Under this rule, legislators can be seen to adopt any legislative provision based on its own merits, not, as Scalia warns us, because they are "hitched" to another piece of legislation.

 You can agree or disagree that such a rule is a good idea, but it is beyond doubt that we have no such rule in the U.S. Constitution. Scalia is just making it up as a ruse to get rid of legislation he doesn't like.

 As I say, unfettered by any pretense of constitutional reasoning.


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