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Thursday, June 28. 2012
Supreme Court Upholds Principles But Avoids Their Application
The bare majority of the Supreme Court upheld Obamacare on grounds that stretch their imagination. The core of their decision allowing the individual mandate to buy insurance is that what is clearly written in the law as a penalty, argued to be allowed as justified under the Commerce Clause of the Constitution, they choose to instead treat as a tax within Congress’ authority. Opinion writer Chief Justice Roberts said, “The question is not whether that is the most natural interpretation of the mandate, but only whether it is a ‘fairly possible’ one.” WTF! As said at National Review,
Supporters of the decision say, "The decision vindicates Obama and congressional Democrats, who maintained throughout the legal challenge that even this court, with its conservative majority, would have to break with decades of precedent to overturn the healthcare law." Others, like the Democratic National Committee, just get their vulgar on.
The Supreme Court commentator at SCOTUS blog says, “The ACA’s key provision now amounts to an invitation to buy insurance, rather than an order to do so, with a not-very-big tax penalty for going without.” However, it is also within the power of future Congresses to increase the tax to where failing to buy insurance will not be a reasonable choice, thus a practically unavoidable mandate.
It is good that the majority refused to broaden the Commerce Clause, which would allow unrestricted expansions of federal controls over all we do. However, the majority still opened Pandora’s Box via another lockpicking.
This being decided, the lack of a severability clause in the law is moot.
In the third area of contention, the Court’s majority did scale back the Medicaid portion of Obamacare to disallow coercive federal withholding of funds to the states for their present Medicaid programs, but does allow the huge increase in qualification for Medicaid to proceed.
The other portions of Obamacare, including the latest affront to religious conscience, were not at issue in today’s decisions, but are expected to come up through the lower courts.
Supporters of Obamacare cannot be anything but elated. Opponents must be discouraged, even with the elements of the decisions that uphold principles while avoiding their application.
For those opponents who rally behind a Republican majority in Congress and President for 2013, the core problem is that it is not to be expected that there will be 60 Republicans in the Senate to repeal Obamacare.
We're just about screwed....unless Senator McConnell has some parliamentary tricks up his sleeve. McConnell says, ""The court's ruling doesn't mark the end of the debate. It marks a fresh start on the road to repeal." Let's hope so.
Posted by Bruce Kesler at 11:57 | Comments (23) | Trackback (1)
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We don't need 60 Senate seats to repeal, now. Remember, they used reconciliation to get it passed, we can use it to repeal.
Don't even need to to that. President Romney can just issue waivers to all 50 states.
He doesn't even need to do that. As we have learned, he can simply refuse to implement the law, spend budgeted monies or enforce the rules. Because it's "the right thing to do".
A simple majority in the House and Senate can pass budget bills to eliminate a tax penalty.
the show's over. OsamaCare will financially wreck the country but, thank the gods, by virtue of constitutional provisions little understood by anyone outside of legal experts, the constitution is preserved.
Congratulations, President Romney. Hope I get the oath right this time.
Chief Justice J. Roberts
I'm confused. Back in the 30's the feds decided to prohibit marijuana but their experience with alcohol made it clear that they didn't have the power without an amendment.
So that put a high federal tax on possession of marijuana. If a federal agent busted you, you did time for tax evasion, like Al Capone.
But I thought that was struck down by SCOTUS as an obvious ruse yet even Scalia extended the Commerce clause in Raich to reach individuals in intrastate commerce and to prohibit states from legalizing pot.
I am continually amazed at the sophistry of our ruling classes.
It appears that SCOTUS said that the powers ofthe federal government are unlimited if they just use the correct language.
Congress did NOT use the word "tax" yet Roberts claimed that that's what it really is.
Ergo, Congress does not even have to "use the correct language" to vastly expand its powers.
In a nutshell:
The 'reasoning' is that the People eleted the Administration and Congress, and this is what they get.
But when the People vote that marriage is between a man and a woman, that vote doesn't count.
This cowardly SCOTUS vote is a big step in ending our Republic. That is no exaggeration. There will now be a constiuency rounded up by community organizers to remind every Representative that an election is coming up, and they depend on Obamacare.
I'll vote for Romney for what good it will do. But he lacks the cojones to take the necessary action. He could give waivers to every citizen, business and state. Does anyone believe he will?
it will get worse. the federal regulations that will implement OsamaCare are still being written by insurance company and the other insiders who are the ones who will primarily benefit from the law. and there's very, very little anyone can do about it.
Lewis Carroll and George Orwell must be smiling. We are now totally governed by newspeak.
See [url]http://www.weeklystandard.com/blogs/what-did-scotus-just-do_647932.html [/url] for a reasoned take.
The ruling doesn't affect me one way or the other. My state---supposedly---has a complete waiver from ObamaCare, which was written into the bill that passed.
If Roberts really did switch his volte at the last minute as it appears, he will likely be viewed with contemp by the other eight justices. In that case, he will have lost all control over the court, and will no longer be an effective chief justice.
Nasty (but perhaps justified) joke going around here on the West Coast:
No wonder Rogerts and his wife had to adopt their children. There are no balls in the family.
"It is good that the majority refused to broaden the Commerce Clause, which would allow unrestricted expansions of federal controls over all we do. However, the majority still opened Pandora’s Box via another lockpicking."
Not sure exactly what your second sentence means, but my interpretation is that the SCOTUS has now approved a alternative route for the federal government to take in exercising unlimited power, subject only to the results of elections. In addition to the Commerce Clause, the government now apparently has the SCOTUS-approved option of using its taxing powers to require citizens to do anything it wishes. If the government wants us to buy GM cars, it can force us to do that with the blessings of the SCOTUS merely by imposing an onerous tax on those who do not buy a GM car. Today's SCOTUS decision says that although inactivity---not buying a car---is not subject to Commerce Clause regulation, it can be taxed to whatever extent the government sees fit. Rather than claiming victory in the matter of the government's use of the Commerce Clause, I'd say the SCOTUS decision has blessed an unlimited expansion of the government via the taxing authority of Congress. We are, unfortunately, in a very much worse situation today than we were when it was only the abuse of the Commerce Clause we had to worry about.
Roberts said, “It is not our job to protect the people from the consequences of their political choices.” The power to tax can be used to compel behavior. Far more likely than a vote to repeal is a vote to empower the political class.
Allow me to propose a hypothetical and determine if it passes Constitutional muster under the Roberts decision. This bill is meant to address the general welfare issues caused by certain uppity citizens of maggie's farm's failure to ‘respect my authoritay!’ of the federal government. The contents of this hypothetical bill is that each citizen shall annually travel to (interstate commerce!) and present themselves in person upon the Mall in DC, upon their birthday and no later than the time of their birth, where they will be ‘mandated’ to lick the boots of their Representative, either of their Senators, the President, Vice President, or any of their designees. For avoidance of doubt, the boot licking does not require the presence of their esteemed personages or designees; they can merely drop off the footwear of their choice, in any state of cleanliness or soiling, and require citizens to lick them. However, this is not strictly a mandate, as citizens can opt out of their boot licking obligations, and pay a penalty (don’t even have to actually call it a tax!) of $10,000 (or $1mm, or an additional 50% of income).
This act can be referred to as the Universal Boot Licking Obligation in Washington, United States, also known by its acronym, U BLOW US. While this may be unwise law, would the interpretation of our Constitution by our supreme court protect us from this idiocy by our political class? Per the logic of the Roberts decision, this would pass Constitutional muster. Anyone whose jurisprudence would find that law Constitutional ought to be intimately familiarized with the American political tradition of tar and feathers, if not lamp post decorating, and there are at least 5 candidates.
They can’t only make us eat our broccoli, they can make us lick their boots. On a bright note, the President can choose to enforce or not enforce the law, or issue waivers to anyone he so chooses, such as people who donate sufficiently, or cry believably enough at his daddy’s funeral.
And McConnell is far more likely to co-sponsor U BLOW US than lead a straight repeal of PPACA.
Well. I am of many minds about the ruling.
On the one hand I am impishly delighted that it's thrown into relief the vaporizing jackassery that is the Media's legal commentariat. They were well and truly caught flat-footed. I don't care how much they protest that "nobody saw this coming!!" The it's-constitutional-because-it's-a-tax ruling may be out of left field, but it did originate from the actual ball park and not from the parking lot. But almost none of the Media discussion ever seemed to reach the possibility.
Also, I have been irritated before the ruling by the presumption by pundits from all over the political spectrum that they can really get inside the heads of the Justices; I've been angered by the Left's preemptive argument that finding the Mandate unconstitutional can only be explained by partisan motives; I'm irritated now that so many are ready to roast Roberts for cowardice, or whatever malignant character trait, because they don't like the ruling.
Not that I like the ruling. I really, really don't.
I think the problem is much more tangled than a court of Law can competently deal with in its entirety. Months ago I was in discussion with another lawyer, a liberal generally in favor of the mandate, and one who litigates various issues directly controlled by the Bill of Rights; mostly 1st and 5th Amendment issues. We were going over the it's-constitutional-because-it's-a-tax angle after batting around the argument for it on Commerce Clause grounds (bless him, he did understand that the Mandate would be a different "flavor" of Commerce Clause power than regular old Wickard style CC power. He was simply comfortable with the extension. A lot of Liberals can't even see the distinction, they're so comfortable with state power).
In any case, at one point I commented that the real problem is that the Constitutionality of the Mandate might easily come down to a hair-splitting legal nicety like calling it a tax instead of an exertion of the Commerce Clause. If a government program as expansive, pervasive, controversial and expensive as the ACA comes to that, what you've really got is a fundamental political disagreement that a Court is badly equipped to straighten all the way out. The political divide in the electorate is much starker than Law can encompass with full justice.
Result: a potentially catastrophic fudge.
Somebody - Instapundit? - wrote today something like "if you were hoping the the Supreme Court would save America from itself, tough luck -- you've got to fall back on politics."
Yep. Later I ran into this comment from Wretchard at Belmont Club:
The law is nuanced. The issues dividing the world today, however, are not legal issues. You are for one side or against it. That is to say, like Dred Scott, the current problem that the court tried to fix, in its broader context, admits only of a political solution. That is unfortunate, but that seems inescapable.
Roberts could not solve this for history. History, as expressed in the political events of the next few years, will have to fix it for themselves.
That's where we're at. An unhappy, let-this-cup-pass-from-me kind of place. I don't like it either.
Don't expect a political solution any time soon. The only way ObamaCare will be repealed is for the Republicans to hold the House, capture the Senate, and win the Presidency. That's not going to happen, not this election, not the next one, and not the one after that. ObamaCare is going to be with us in one form or another for a very, very long time. Except for the laws of Prohibition, the history of bad legislation in this country is that it gets patched, then patched some more, whenever things don't work as expected. That's why the Internal Revenue Code is as complicated as it is today. And so this too will be the future of ObamaCare: as its defects reveal themselves to even the densest member of Congress, more laws and rules will be passed to kick the problem down the road. We will be saddled with the law until it bankrupts the nation, at which point something equally dreadful will take its place because by then the Roberts view of unlimited federal authority will be the new normal. However, by great good fortune I will be long gone, cold in my grave, when that comes.
The only thing to kill this will be running out of OPM. Bush 1 or Bush 2, Clinton 1 or Clinton 2, Obama, or Romney would all institute this using Rino or Socialist congress critters and justices. Thinking Romney will end this is just overdoing that bad ass weed. Leave Obama in there to go down with the economic ship. Yeah thats right, the economy will have no chance to survive this taxation anchor so just leave it hooked up to Obama. Instead it is best to focus on conservative senators and representatives.
I predicted that the Supremes would not declare Obama care unconstitutional but rather come out with a ruling that made this abominable legislation far worse. In my lifetime this is what the Supremes have done. They either split so closely that no one really knows what is or is not constitutional or worse they cut the baby in half and throw out some part of a unconstitutional law while leaving the most egregious part intact. But this time the Supremes made everything worse.
If congress is able to do the best possible thing, that is to over turn all of Obamacare, the government will in the meantime have spent 100's of billions to implement it (and pay off political cronies) that we will never get back. This while we are going bankrupt and unable to fund real needs. It will also have created at least four years of total confusion for employers, insurers and care givers causing some of them to go out of business and many of them to lose money and have to reduce services to American citizens. And lastly it will create a mish-mash of regulations, expired or retracted regulations, confused regulators and situations where patients die or who's illness becomes worse simply because of the confusion this law and the repeal created.
If congress, the president and the Supremes were to have gotten together three years ago over cocktails and pondered how they could totally destroy the worlds best healthcare system it is doubtful that even the most devious mind could have come up with this legal morass and regulatory disaster.
The Supremes could have prevented most of this with a clean ruling that the entire bill was unconstitutional. It also would have set a clear precident limiting the federal power to control every aspect of our lives. But it appears that instead they preferred obfuscation, judicial legislation and constitutional destruction.
Tracked: Jun 28, 13:02