A few words on the Health Care ruling

Trip Start Jun 25, 2012
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Flag of Sri Lanka  , Eastern Province,
Monday, July 2, 2012

Was I a bit shocked on the ruling? Of course I was. Like most who follow politics, I predicted a 5-4 decision against, and knew beyond a shadow of doubt that if it went the other way, it would be Justice Kennedy who broke with the constructivist ranks. We were all wrong. Or were we?

This is not a discussion on the merits of a national healthcare or even on the hybrid version Obama and the partisan Congress have unleashed on us. It is merely a discussion on the ruling. The two issues at stake in front of the Supreme Court dealt with article 1, section 8, clause 3 of the Constitution, otherwise known as the "Commerce Clause," and the 10th amendment of the Constitution with the sole purpose of delineating between the powers of the federal government and the states' governments. For Thomas Jefferson and George Mason, this amendment would have been the most important of the first 10 amendments. For Mason, the absence of these 10 amendments at the signing of the Constitution was enough to keep his signature off the document. So, those of us who made predictions based our predictions on our understanding of those two readings. We were correct.

Robert's decision to side with the activists is based on something we could have never predicted, not only because it is without precedent over the last 100 years, but it is really unconstitutional.

We knew that while the Commerce Clause has been stretched beyond belief over the last 40 years or so, there would be great difficulty in taking the words, Congress has the power "to regulate commerce between the many states" to mean Congress has the power to force its citizens to purchase a commodity. We knew, that while the elasticity of the Commerce Clause stretched even beyond what the "necessary and proper" clause would allow, that at least the previous court rulings of Lopez in '95 and Morrison in 2000* would provide the adequate braking necessary for a decision against the Healthcare law. We also knew it would be impossible to suggest that the 10th amendment would allow the federal government to force the states to allocate different monies toward their medicaid programs. Since those were the two issues at hand, the ruling must go against.

Roberts made sure to write the decision himself, and oddly enough, the other four justices who were also in the majority only signed their names to a small part of his explanation. Ninety-five percent of what he wrote sounded like he was with the minority vote. Interestingly enough, the reason for his final, and I believe last-minute decision, would not and did not obtain agreement from any of the other eight justices. I would not call myself a Supreme Court expert, but I have studied enough rulings to say I have never seen anything like that. His reason was based solely on the tax...I mean penalty...no I mean tax...heck, I can't even figure it out...issue. Roberts did exactly what most of us knew he would do. He said the Commerce Clause would not allow the mandate and said the 10th amendment would not allow the federal intrusion. Instead, he changed the wording of the actual bill, changed the wording of the administration and took something that everyone, except the U.S. Attorney in his argument, has tried so painstakingly to disguise and made it something that it is clearly not. I am referring to the penalty aspect of the bill in which case, Roberts called it a tax.

(An addition since the original writing) -- One more point that that just came to me that seems to be a pretty big deal is that when the healthcare bill was originally written, one of the reasons they could not make the "penalty" a tax was that they did not have the votes in the House to get it passed. All revenue bill, i.e. taxes must originate in the House because it is the one most connected to popular sovereignty since they are elected every 2 years. They had to start the bill in the Senate which could not write it as a tax, therefore it was a penalty. Now, Roberts has said it was a tax. Not sure how that works retroactively, and I guess no one else does either because a Supreme Court justice has never changed the wording of a law like this before.

The Affordable Healthcare Law, from a constructivist point of view, is clearly unconstitutional. Why was it written that way? A national healthcare would not be unconstitutional. Charging a tax on the American people to pay for the federal healthcare is not unconstitutional. The "tax and spend clause" found in article 1, section 8, clause 1 of the Constitution clearly allows it since the "no head tax" section was removed with the 16th amendment.  So why didn't Congress go that way? Easy. They did not have the votes nor the will of the people, nor did Obama want to be accused of raising taxes in his first year. They had to call it a penalty. The fact that the IRS was going to collect it did not even change the word. Now, that, Congress does not have the power to do. I know, it seems small, but it is significant enough. The Congress could have taken money from us upfront and used that money to put us all on the federal healthcare teat, and it would have been constitutional. But to tell us we have to buy something and then charge us a "penalty" if we do not is not within congressional powers under the Constitution.

The interesting part is that to avoid being accused of raising taxes, the administration fought hard against using the word tax for months following the passage and ever since whenever the issue would come up. Then knowing they were trapped, US Solicitor General Donald Verriili tried hard to call it a tax during oral arguments before the Supreme Court, getting even liberal justice Breyer to ask him why he kept calling it a "tax". It got a chuckle, because everyone knew what was going on there. That made us constructivists jump for joy, thinking maybe the vote would not be 5-4, that maybe beyond miracles, we might even push some sanity on the activists and get a 6-3 or maybe even 7-2. Craziness. Then Roberts did the unthinkable. He did not stretch the commerce clause nor ignore the 10th amendment like the activists. He said the penalty was actually a tax. No one saw that coming. The biggest reason for us not seeing that coming was that if it really is a tax, the Supreme Court by law can not even hear the case. It should have been dismissed. If it is a tax, the Supreme Court cannot hear the case until the tax--wink wink--has been collected at least once, which will not happen until 2014.

Now, to make things even funnier, you now have the administration, post ruling, trying desperately to make sure the American people know that it really is not a tax. They do not want Romney to claim Obama has raised taxes. So, to quickly review: Obama says it is not a tax to sell it to the people; his solicitor general tries to start making it a tax during arguments to sell it to the justices; the conservative Chief Justice says its a tax, which really makes it illegal for him to even hear the case. But naming it a tax was the only possible way the ruling could go in Obama's favor. And now Obama is trying hard to make sure we all remember it really is not a tax. You following all that? I'm lost.

So, this reminds me a little of the ruling that Sandra Day O'Connor handed down on the original Affirmative Action decision. She ruled in the majority, with the liberal activists, that race could be a factor in determining admission to university. In her ruling, she admitted the precedent or policy she was allowing should only last for another 10 years or so. That baffles the constructivists because a law is constitutional or it is not. It cannot be constitutional for a certain period of time. Interestingly enough, a new ruling on affirmative action should be coming down next year, which again is unprecedented because the Court normally does not hear another case on the same issue within the same generation. The last case was in 2004. Prediction: they will strike the old ruling, confounding the liberal media and ending their current love affair with Roberts. The two decisions by O'Connor and Roberts are similar in that we can see that Roberts really does see the healthcare mandate as unconstitutional. He dug into some magic hat of tricks and tried desperately to make it so. I can see him holding his nose as he signed his name. Why did he do it? Only he knows, and the media can speculate.

It is important to remember, though, that while we were wrong on the ultimate decision, we were right in that the law could not be defended by the commerce clause or by the 10th amendment, which will now allow states to continue to fight, see Florida. Because while the law has been made constitutional, it did not give the federal government the right to force the states to pay for it. The problem is that most people will remember simply that The Affordable Healthcare Act was found to be constitutional, and less what they should remember, that the commerce clause was not stretched to cover the mandate and the 10th Amendment is still safe.

* Lopez is United States v. Alfonso Lopez, Jr.
  Morrison is United States v. Morrison

For a good understanding of Judicial Activism and Constructivism you can read this article or just read the excerpt below. It could be very confusing if you listen to the media lately.

"Judicial activism properly refers to how a judge interprets the law,
rather than the subjective desirability of the outcome of a case. It
occurs when judges write subjective policy preferences into their
decisions rather than interpreting the constitutional or statutory
provisions according to the law’s original meaning or plain text [otherwise known as judicial constructivism]."

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Comments

JoAnna Hamilton on

Todd,

I completely agree that this case cannot be defended by either the Commerce Clause or the 10th amendment. I was thinking just as you were (and anyone who has ever read the constitution) that this should be a very simple and straight forward decision. Apparently we couldn't have been more wrong. What is most disturbing however are the reports that Roberts did this "to keep the peace" on the court, or to maintain "maintain the image" of the court. If true, that could be the worst revelation from this decision because of the uncertainty of future decisions.

The part of this that I am still struggling with is whether this even survives as a tax. Article I, section 2, allows for a direct tax which "shall be apportioned among the several States...according to their respective numbers." Amendment 16 allows for an income tax. It is certainly not an income tax, and direct taxes have been very difficult to implement. If Roberts was considering this a direct tax then he might be right after all, and at the same time made this almost impossible to implement.

So, when are you guys going to make it to our little quintessential "Yankee Doodle Dandy" New England town of Simsbury for a visit? I's not Sri Lanka, but we sure would love to see you guys!

Have fun, and stay safe.
JoAnna

tpuckett
tpuckett on

Thanks JoAnna for your thoughtful comment. Always good to know that there are people out there that are interested in this and understand the issues. The tax, if that is what it is, will survive constitutionally as the section you referred to in article 1 section 2 was made null and void with the 16th amendment. The tax on the mandate will not be a capital or head tax, which was unconstitutional, except for the income tax, as it will not be applied to everyone equally; it will only be applied to those that are penalized for not buying.

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