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The ACA Case Reveals the Politics of ‘Constitutionality’

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Getty / The Atlantic

“I’d like to terminate Obamacare,” President Donald Trump said at Thursday night’s debate. He said he hoped that the Supreme Court, flush with six conservative justices after Judge Amy Coney Barrett’s likely confirmation, would take care of the job for him. “Now it’s in court, because Obamacare is no good.”

Trump’s argument is an awkward one, and not only because it’s a toxic message in the closing days of a campaign that’s occurring against the backdrop of a global pandemic. At last week’s confirmation hearings for Barrett, Trump’s Republican allies on the Senate Judiciary Committee repeatedly threw cold water on the lawsuit, which the Supreme Court will hear on November 10. As Democrats drew attention to the risk that the Supreme Court might put the law to the torch, Republicans insisted that the lawsuit was unlikely to succeed and that it was unfair to assume that Barrett would be as reckless as the man who nominated her. Democrats accused Republicans of disingenuousness; Republicans accused Democrats of fearmongering. The ensuing debate was as loud as it was unedifying.

All that noise obscured two deeper truths. The first is about the nature of constitutional change, and it helps explain why Senate Republicans have a point when they question the viability of a lawsuit whose goals they share and that the White House supports. The second is about the threat that the conservative Supreme Court poses to democracy. A Justice Barrett may be unlikely to topple the Affordable Care Act, but she’s a foot soldier in a conservative legal movement that has armed itself with the tools to subvert Congress’s ability to govern.

Roll the tape back to 2010. Minutes after President Barack Obama signed the Affordable Care Act into law, lawsuits were filed challenging the constitutionality of the individual mandate, the part of the law requiring people to secure insurance or pay a tax penalty. At the time, the cases were widely dismissed as constitutional stunts that stood no chance of success in the federal courts.

By the time the Supreme Court heard them in 2012, however, the cases had become nail-biters. That year, Jack Balkin, a Yale law professor, took a hard look at how that happened. His account of constitutional change didn’t turn on the nitty-gritty of legal doctrine. Instead, it hinged on the simple insight that “what people think is reasonable depends in part on what they think that other people think.”

Supreme Court justices are people too. That’s why moving a constitutional argument from “off the wall” to “on the wall”—to borrow Balkin’s terminology—demands more than showing that the argument is legally defensible. The justices must be reassured that the argument has enough public support that they won’t be written off as kooky or eccentric for endorsing it. The Supreme Court came to find that the Constitution protected gay rights and gun rights, for example, only after those rights had become mainstream. A similar shift in public sentiment explains how the challenge to the individual mandate became plausible.

How exactly did the challengers manage it? It wasn’t enough for conservative lawyers to make clever arguments, though that was essential. Nor was it enough for Tea Party activists to crash town halls. For Balkin, the key to the campaign’s success was the full-throated support of the Republican Party. The arguments of liberal lawyers insisting that conservatives were just making stuff up about the Constitution rang hollow when Republicans across the country, including local politicians, business leaders, and the guy on the bar stool, said otherwise. An argument can’t be crazy if half the country buys it.

The Republican Party’s political support was forthcoming because the legal challenge directly advanced the party’s agenda. Republicans might cripple a law that they deplored; failing that, they could use the challenge to focus public outrage and mobilize voters. As it happened, the Supreme Court, by a 5–4 vote, upheld the Affordable Care Act by construing the individual mandate as an exercise of Congress’s power to tax. But the political gambit worked: In 2012, Republicans made historic gains in both the House and the Senate. President Obama called it a “shellacking.”

Strictly on the legal merits, this latest challenge to the individual mandate is more absurd than the first one. In 2017, when Congress eliminated the tax penalty for going without insurance, it left in place language saying that people “shall” buy insurance. With nothing to back it up, that instruction lost its teeth. But the challengers—a group of red states—have argued that Congress, by retaining that language, must have meant to coerce people into buying insurance.

The upshot is that, by eliminating the tax penalty for not having insurance, Congress made the individual mandate more coercive—and thus unconstitutional. Even more radically, the challengers say that the constitutional flaw in the individual mandate requires unraveling the entire Affordable Care Act. Neither of these arguments is defensible.

But the case’s doctrinal weakness is not what most sharply distinguishes it from the first Obamacare suit. Indeed, the arguments are coherent enough to have persuaded each of the three Republican-appointed judges who have heard the case so far. The biggest difference is that the conservative political establishment that did so much to make the last Obamacare case seem plausible, even inevitable, has not laid the same groundwork here. The case is still off the wall.

The first sign that something was different about this lawsuit came in 2018, just months after it was filed. Instead of avoiding a debate over health reform, as they had before, Democratic Senate candidates used their opponents’ support for the lawsuit as a cudgel. Joe Manchin of West Virginia fired a shotgun at a copy of the complaint; Claire McCaskill of Missouri ran ads excoriating her opponent, Josh Hawley, for joining a case that would rip protections from people with preexisting conditions.

Hawley set the script for how Republicans would respond to these attacks. They would ignore the lawsuit, not defend it, and press the misleading talking point that they support protections for people with preexisting conditions. Protective of his Senate majority, Mitch McConnell damned the lawsuit with faint praise, saying only that there was “nothing wrong with going to court. Americans do it all the time.”

The pattern has held this election cycle. Embattled Senator Cory Gardner of Colorado, for example, has refused to say where he stands on the case. Instead, he released a campaign video promising to maintain preexisting-condition protections “no matter what happens to Obamacare.” When Democrats forced a vote on whether to bar Trump’s Justice Department from supporting the lawsuit, Gardner and five other incumbents in close elections broke from their party to side with Democrats. Republicans aren’t running on their party’s support for the lawsuit. They’re running away from it.

The only major exception is President Trump himself. Indeed, the White House’s surprise endorsement of the lawsuit in 2018 is probably best understood as a bid to get the rest of the Republican Party to back the case and put it on the wall. But that bid failed: The case was just too radioactive for most Republican officeholders. Even Attorney General Bill Barr has urged the president to moderate his position. A more prudent president probably would have taken that advice.

If the lawsuit is such a liability for Republicans, why was it brought in the first place? The answer is that what’s bad for the party may still be good for some politicians. Every one of the red-state attorneys general who brought the lawsuit has ambitions for higher office. But winning a gubernatorial race in Utah or Texas means winning a Republican primary, and the primary electorate in these states is much more conservative than the general. It might be advantageous for those politicians to press a position that’s bad news for Republican incumbents.

This puts Republican leaders in a bind. Without getting crosswise with the White House, they are trying to signal as loudly as they can that they would prefer the lawsuit to go away. That effort reached almost comic proportions during the Barrett hearings. McConnell said that “no one believes the Supreme Court is going to strike down the Affordable Care Act.” Senator Lindsey Graham, the chairman of the Judiciary Committee, emphasized that severability doctrine requires judges “to save the statute, if possible.” Senator Chuck Grassley said that it was “outrageous” to think that Barrett would invalidate the law, because, “as a mother of seven, [she] clearly understands the importance of health care.”

The Supreme Court is sure to get the message. During the first Obamacare case, groups affiliated with the Republican challengers filed 59 amicus briefs, including one from the Chamber of Commerce and another on severability from McConnell and dozens of Republican senators. This time around, only five amicus briefs were submitted to support the lawsuit, all from marginal players in the Republican political ecosystem. McConnell is sitting this one out.

The Supreme Court would thus be going out on a limb were it to invalidate all or part of the Affordable Care Act. It may still do so; we’re all just guessing. But without a full-court press from the Republican Party, a result like that couldn’t be spun to the public as a principled constitutional holding. Even to Republicans, it would look like rank partisanship. And the justices know that Republicans would bear responsibility for the fallout.

Although the prospects of this particular lawsuit are dim, however, the Democrats were right to focus on it during Barrett’s hearing. To begin with, the case serves as a reminder of all the other cases about health care that are coming down the pike—and not just those about abortion. The Supreme Court, for example, will decide in the coming weeks if it will hear a case about whether 19 states can impose work requirements on Medicaid beneficiaries. The U.S. Court of Appeals for the D.C. Circuit said no, effectively preventing hundreds of thousands of people from losing insurance. A Supreme Court packed with a conservative supermajority could—and probably would—flip that decision.

This latest Obamacare case also stands in for all the cases to come involving progressive legislation. Judge Barrett has been pretty candid that she would have sided with the challengers in the first lawsuit challenging the individual mandate. If she, not Justice Ruth Bader Ginsburg, had been sitting on the Court back in 2012, the Affordable Care Act would now be in ashes.

That should teach us something about the reception that major legislation passed by a Democratic-controlled Congress is likely to receive on a 6–3 Supreme Court. Republican officeholders may have mixed feelings about this case, but they will leap to convince their conservative constituents of the unconstitutionality of Medicare for All or a new Voting Rights Act or the Green New Deal. The resulting mobilization will make the Supreme Court receptive to inventive arguments that target those laws or frustrate their implementation.

Making the Affordable Care Act the centerpiece of the Barrett hearings was thus apt—not because the law itself is in serious jeopardy, but because it symbolizes the risk of giving a veto over progressive legislation to a conservative supermajority on the Supreme Court. The justices’ views about what counts as reasonable, like anyone’s, are powerfully shaped by the political debates of our time. If Barrett is confirmed, the views of two-thirds of those justices will be shaped by a Republican Party that represents less than half the country.

That’s not just a problem for Democrats. It’s a problem for democracy.

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This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.

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Even as political relations worsen, Canada-China trade thrives – The Globe and Mail

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A Helijet helicopter flies past gantry cranes and shipping containers at the Port of Vancouver while landing on the harbour in Vancouver, on Wednesday, March 11, 2020.

DARRYL DYCK/The Globe and Mail

Canada’s business with China appears to be thriving during the pandemic even as diplomatic relations remain in a deep freeze.

Exports to China increased close to 10 per cent in the first seven months of the COVID-19 pandemic over the same period a year previous, according to new analysis from the Canadian International Development Platform (CIDP), which is part of the Norman Paterson School of International Affairs at Carleton University.

This growth occurred even as exports, by value, to many other traditional customers sunk during the pandemic, which hit Canada in March.

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Overall, Canadian exports fell nearly 20 per cent in the same March to September period, CIDP’s analysis of Statistics Canada data shows. For instance, exports to the United States declined 22 per cent in this period.

Exports to China for the March to September period exceeded $14.7-billion, compared with $13.4-billion in 2019.

Aniket Bhushan, an adjunct research professor at the Norman Paterson School, said one of the reasons exports to China are growing is that sales are rebounding from a bad year in 2019 when China punished Canada for arresting Huawei Technologies chief financial officer Meng Wanzhou. China blocked sales of pork and beef for several months in 2019.

Still, Prof. Bhushan said, Canadian exports to China appear to be on track to exceed 2018 levels by the end of this year.

Perrin Beatty, president of the Canadian Chamber of Commerce, said Canadian exports to China are up in 2020 because China’s economy is one of the few that will grow this year. The country, where COVID-19 first appeared, recovered much more quickly than most and is expected to expand economic output by a modest 2.1 per cent this year.

Diplomatic relations between China and Canada have steadily eroded since late 2018 when Canada arrested Ms. Meng on a U.S. extradition request and Beijing locked up two Canadians – Michael Kovrig and Michael Spavor – in what Prime Minister Justin Trudeau has called an effort to exert “political pressure.” Beijing applied, and then lifted, restrictions barring imports of Canadian pork and beef, while Canada’s two biggest exporters of canola seed remain barred from shipping to the Chinese market.

In October, Deputy Prime Minister Chrystia Freeland denounced China’s ambassador to Canada for threatening Canadians living in Hong Kong, saying envoy Cong Peiwu overstepped his diplomatic role when he warned granting asylum to pro-democracy dissidents could jeopardize the “health and safety” of 300,000 Canadians living in the Asian city. Mr. Cong was also reprimanded by the Global Affairs department.

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Trade data analyzed by CIDP show rising exports to China include ores, cereal grains such as wheat, meat, animal or vegetable fats, and vegetables. Statistics compiled by the federal agriculture and agri-food department show that in September, for instance, Canada exported 61,570 metric tonnes of pork to China compared with 346 tonnes in September, 2019.

Mr. Beatty, whose organization represents 200,000 Canadian businesses, said the political differences between Ottawa and Beijing should not be allowed to “contaminate our commercial relationships.” He said it “makes no sense for the Chinese to use imports of Canadian agri-food as a weapon” and that “politicizing trade” destroys the benefits of trade.

“Half a century ago, Canada supplied China with wheat when other countries refused to sell to them. It was the right decision, and both Canadian farmers and the Chinese people benefited,” he said.

Gordon Houlden, director of the University of Alberta’s China Institute, suggested that China is being pragmatic in dealing with Canada for economic and political reasons.

“I think there may be a desire not to make things worse on the political side because taking the two Canadians has not worked out and maybe there is a desire not to add economic pressure to the equation,” he said.

In a recent report, the China Institute documented how China is continuing to buy Canadian agricultural goods at a solid pace.

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David Mulroney, a former Canadian ambassador to China, said that aside from arresting Ms. Meng – who is fighting extradition to the U.S. in a B.C. court – Ottawa has avoided taking significant measures that might antagonize Beijing.

By comparison, Australia has faced an increasing list of trade reprisals from China after challenging China in ways Canada hasn’t. Australia has banned Huawei from 5G networks, called for an inquiry into the origins of COVID-19, and led a pushback against authoritarian states by enacting a law to monitor agents acting for foreign governments.

Prof. Houlden said it would be unwise for Canada to try to decouple its trade with China. He added that trade accounts for 64 per cent of Canada’s GDP, compared with 24 per cent for the U.S. and 37 per cent for China.

“We are far more export dependent than China and we can’t maintain our prosperity without that, so [the] idea that we can’t or shouldn’t sell to China is not sustainable,” he added.

While Canadian canola seed exports continue to face targeted restrictions from Beijing, the China Institute report said 2020 has been marked by relative gains in both export value and tonnage. The cumulative value of canola seed exports to China has risen by 52 per cent on a year-to-date basis to $976-million. That’s still far below the $2.7-billion in canola seed Canada exported in 2018, however.

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Indian politicians slam Trudeau for 'unwelcome' remarks on farmers' protest – CTV News

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TORONTO —
Politicians in India are slamming Prime Minister Justin Trudeau for wading into the escalating farmers’ protests in their country.

Tens of thousands of Indian farmers have swarmed India’s capital New Delhi in protest of laws passed back in September which the farmers believe will allow corporations to exploit agricultural workers.

The farmers have been met with tear gas and water cannons upon arriving In New Delhi, but have indicated that they intend to stay in the regions for weeks if necessary.

Trudeau weighed in Monday during a virtual celebration for Guru Nanak Dev Ji Gurpurab, a festival to mark the 551st birthday of Guru Nanak, the founder of Sikhism.

“The situation is concerning and we’re all very worried about families and friends,” Trudeau said during video conference, which was later tweeted by the World Sikh Organization.

“Canada will also be there to defend the rights of peaceful protests. We believe in the importance of dialogue and that’s why we’ve reached out through multiple means directly to the Indian authorities to highlight our concerns.”

Indian Prime Minister Narendra Modi has said the new laws give farmers more autonomy to set their own prices and the ability to sell their products directly to businesses.

Both NDP Leader Jagmeet Singh and British Columbia Premier John Horgan have previously issued statements in support of the Indian farmers, though Trudeau is believed to be the first world leader to make a public statement.

Trudeau’s comments were met with harsh criticism from Indian politicians on both sides of the debate. In a statement, Indian Foreign Ministry spokesperson Anurag Srivastava called the comments “ill-informed.”

“Such comments are unwarranted, especially when pertaining to the internal affairs of a democratic country,” the statement read. “It is also best that diplomatic conversations are not misrepresented for political purposes.”

Priyanka Chaturvedi, an Indian MP and deputy leader for Shiv Sena, a right-wing regional party, tweeted that she is “touched” by Trudeau’s concern, but “India’s internal issue is not fodder for another nation’s politics.”

In an opinion piece on the New Delhi Television website, Chaturvedi called it “unfortunate” that Trudeau is using “India’s internal issue to further his own place in his nation’s politics.”

“In international relations, there are courtesies extended to not comment on internal affairs of a nation, India has always extended it to other nations, we expect the same to be extended to India,” Chaturvedi wrote in the article.

Chaturvedi did add that if the Indian government continues to ignore the protests, the country will open itself up to commentary from other nations.

Raghav Chadha, a spokesperson for the Aam Aadmi Party (AAP), the ruling party in the New Delhi region, echoed Chaturvedi’s comments.

“While we urge (Bharatiya Janata Party) Govt to immediately resolve & accede to farmers’ demands, this remains an internal matter of India,” he wrote in the tweet. “AAP believes interference or commentary from elected heads of other countries are unsolicited & unwelcome. India is capable of handling its own domestic matters.”

With files from The Associated Press

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Justice Department investigating potential presidential pardon bribery scheme, court records reveal – CNN

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The case is the latest legal twist in the waning days of President Donald Trump’s administration after several of his top advisers have been convicted of federal criminal charges and as the possibility rises of Trump giving pardons to those who’ve been loyal to him.
The disclosure is in 20 pages of partially redacted documents made public by the DC District Court on Tuesday afternoon. The records show Chief Judge Beryl Howell’s review in August of a request from prosecutors to access documents obtained in a search as part of a bribery-for-pardon investigation.
The filings don’t reveal a timeline of the alleged scheme, or any names of people potentially involved, except that communications between people including at least one lawyer were seized from an office that was raided sometime before the end of this summer.
No one appears to have been publicly charged with a related crime to date.
The White House declined to comment on the court filing. CNN has previously reported that associates of the President are making appeals to him in the hopes of obtaining pardons before he leaves office. There is no indication that any of those associates are being investigated by DOJ in relation to Tuesday’s filing.
A Justice Department official told CNN that “no government official was or is currently a subject or target of the investigation disclosed in this filing.”
According to the court records, at the end of this summer, a filter team, used to make sure prosecutors don’t receive tainted evidence that should have been kept from them because it was privileged, had more than 50 digital devices including iPhones, iPads, laptops, thumb drives and computer drives after investigators raided the unidentified offices.
Prosecutors told the court they wanted permission to the filter team’s holdings. The prosecutors believed the devices revealed emails that showed allegedly criminal activity, including a “secret lobbying scheme” and a bribery conspiracy that offered “a substantial political contribution in exchange for a presidential pardon or reprieve of sentence” for a convicted defendant whose name is redacted, according to the redacted documents.
Communications between attorneys and clients are typically privileged and kept from prosecutors as they build their cases, but in this situation, Howell allowed the prosecutors access. Attorney-client communications are not protected as privileged under the law when there is discussion of a crime, among other exceptions.
“The political strategy to obtain a presidential pardon was ‘parallel’ to and distinct from [redacted]’s role as an attorney-advocate for [redacted name],” Howell wrote in her court order.
The grand jury investigation also appears to relate to unnamed people acting as unregistered “lobbyists to senior White House officials” as they sought to secure a pardon and use an intermediary to send a bribe, the unsealed court records say.
Prosecutors hadn’t provided evidence to the judge, however, of any direct payment, and instead showed evidence that a person was seeking clemency because of past and future political contributions.
The investigators indicated in court that they intended to “confront” three people with the communications and complete their investigation.
Over the last week, the Justice Department told Howell it wanted to keep filings related to the matter confidential in court, because “individuals and conduct” hadn’t yet been charged.
Trump has granted 29 pardons and commuted 16 people’s sentences during his presidency, according to the US Pardon Attorney’s office. Several of those have gone to people close to the President or whose names would make a splash — including the 19th Century suffragist Susan B. Anthony, the former Illinois Gov. Rod Blagojevich, Bush-era adviser Scooter Libby and longtime Republican political adviser Roger Stone, who lied to Congress to protect Trump’s efforts in 2016.
Just last week, Trump pardoned his former national security adviser Michael Flynn for lying to the FBI, undisclosed lobbying for Turkey and the waterfront of potential related crimes that Flynn could have faced in the future.
This story has been updated with additional information.

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