The New Yorker : Abolishing Obamacare : By Supreme Court Justice Clarence Thomas’s reading, Social Security and the National Labor Relations Act, to say nothing of Medicare and Medicaid, might all be unconstitutional

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The Personal War of two "Black" Men ! : Obama and Thomas ! 

The Justice's wife Virginia Thomas is a prominent Tea Partier earning lots of money for her Super Conservative Views that she shares with her husband. He does not hide being a super enemy of everything that Obama proposes.


The New Yorker -
Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan? -
by Jeffrey Toobin -
August 29, 2011 -


Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan?


Some excerpts of a very long article ( 10 pages ) :

In “Boiling Mad: Inside Tea Party America,” the Times reporter Kate Zernike wrote, “In the originalist view, and the Tea Party view, the perversion of the Constitution took off during the presidency of Franklin Delano Roosevelt.” On this issue, as ever, Thomas led where the conservative movement soon followed.

Early in the New Deal, the Supreme Court struck down several of President Roosevelt’s signature initiatives as violating the Commerce Clause of the Constitution. If the law did not directly affect commerce “among the several states,” in the words of Article I, the Nine Old Men on the Court said that Congress had no right to pass it. F.D.R. responded to these setbacks with his infamous court-packing plan, but a change of heart by Justice Owen J. Roberts in 1937, followed by Roosevelt’s own appointments to the Court, transformed the understanding of that provision. In a series of cases, the Justices gave Congress essentially unlimited power to regulate the national economy. In Wickard v. Filburn, from 1942, the Court said that the federal government could regulate the amount of wheat grown on a farm, even if none of the wheat was sold across state lines, or even if no wheat was sold at all. Because the production of wheat, taken in aggregate, did affect interstate commerce, the regulation was permissible. With that, the issue of the Commerce Clause more or less vanished from the Supreme Court’s docket for decades—until Thomas and the Tea Party brought it back to life.

In 1995, the Supreme Court, in an opinion by Chief Justice William H. Rehnquist, did finally strike down another law as violating the Commerce Clause. In United States v. Lopez, the Court rejected a federal law that made it a crime to possess a gun near a school. Rehnquist’s opinion said, in essence, that possession of a gun in or near a school was so completely remote from the national economy that Congress had no right to prohibit it.

Thomas agreed—and then some. In a concurring opinion, he said, “I write separately to observe that our case law has drifted far from the original understanding of the Commerce Clause. In a future case, we ought to temper our Commerce Clause jurisprudence.” Even Rehnquist had acknowledged the long line of cases that said the Commerce Clause was satisfied if the activity in question “substantially affects” interstate commerce. In a characteristically lengthy and detailed opinion, Thomas said that the early New Deal Court—the Nine Old Men—was right, and all the Justices over the following six decades were wrong. Thomas wrote, “From the time of the ratification of the Constitution to the mid 1930’s, it was widely understood that the Constitution granted Congress only limited powers, notwithstanding the Commerce Clause.” By Thomas’s reading, Social Security and the National Labor Relations Act, to say nothing of Medicare and Medicaid, might all be unconstitutional. “Justices can be influential by indicating to lawyers the boundaries of what’s possible,” Eugene Volokh, a professor at U.C.L.A. School of Law and a widely read blogger, said. “There is conventional wisdom about what’s possible, like ‘Whatever you think about the Commerce Clause, no one is going to go back to the pre-1937 approach,’ or ‘The Second Amendment is a closed issue.’ Thomas has shown that sometimes the conventional wisdom is wrong.”

Supreme Court Justices, especially those who are appointed young, like Thomas, can afford to take the long view. On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act. That same day, Kenneth Cuccinelli, the Attorney General of Virginia, filed one of the first of several legal challenges to the law. Earlier this year, sixteen years after Lopez, Judge Roger Vinson, of the Federal District Court in Pensacola, struck down the law in its entirety—and he relied several times on Thomas to do so. (The Eleventh Circuit affirmed Vinson, in part.) Quoting Thomas’s concurring opinion in Lopez, Vinson said that the Obama Administration’s position would allow the federal government to “penetrate the recesses of domestic life, and control, in all respects, the private conduct of individuals.” These words, of course, would fit just as well in a speech by Ginni Thomas as in an opinion by her husband.

Four more circuit courts of appeals are slated to weigh in on the constitutionality of the health-care law. In due course, the Justices will have their turn. I asked Cuccinelli what role Thomas might play in the resolution of the health-care case. “I don’t like to make predictions,” he told me. “But I know I’ve got his vote.” ?

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