Tag: ObamaCare

The Switch In Time That Betrayed Nine

Veteran Supreme Court reported Jan Greenberg reports what many had speculated—that Chief Justice John Roberts switched his vote on ObamaCare, saving the bill from being declared unconstitutional. Justice Anthony Kennedy, the crucial “swing judge” even tried to get Roberts back on the side of the Court’s conservative bloc, but to no avail.

Chief Justice John Roberts

Chief Justice John Roberts of the United States Supreme Court (AP Photo)

What Roberts did, in other words, was a betrayal of his principles as a judge. Greenberg explains why Roberts switched his vote:

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public.

There were countless news articles in May warning of damage to the court – and to Roberts’ reputation – if the court were to strike down the mandate. Leading politicians, including the president himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

The problem with Roberts’ switch is that it doesn’t accomplish what he was apparently tempted to do. Yes, right now the left-wing media is praising Roberts for taking their side and saving ObamaCare, but does anyone believe that will last? If Roberts presides over another 5-4 defeat of a major liberal initiative, he’ll be damned and criticized as before. The legitimacy of the Supreme Court will always be called into question by the left so long as the Supreme Court does its job in enforcing substantive limits on the power of the federal government. All Roberts has done is buy some temporary credit.

And that temporary credit comes at the expense of the Constitution. Ostensibly, Roberts’ opinion limits the government’s ability to use the Commerce Clause to justify mandates on individuals. But there is reason to believe that future Courts will not be bound by that language as precedent. The benefit of Roberts’ alleged limitation of the Commerce Clause may not be anywhere near as great as some conservative commentators are making it to be.

Not only that, but the logic used to justify upholding the mandate as a tax is not consistent. That argument was generally rejected by lower courts, and not taken seriously during oral arguments. The whole point of a tax is to raise revenue—which the individual mandate is not supposed to do if it actually works. If you refuse to pay a tax, the government can fine you or put you in jail—yet the individual mandate is not enforceable in that manner. Congress did not intend to turn the individual mandate into a tax, and as much as Congressional intent matters in interpreting a statute, Roberts’ decision contradicts it. The dissent treats Roberts’ arguments on the tax issue with a thinly-veiled contempt—and largely for good reason.

Roberts’ decision comes off as nakedly political—and even Roberts himself seems to want to back away from its full consequences, painting it as a choice that he did not want to make by one he made because the law demanded it. But his legal arguments are so thin that his protestations ring hollow: the argument that Roberts upheld ObamaCare in the vain hopes of preserving the legitimacy of the Court in the eyes of The New York Times seems to be the most likely explanation.

But a Justice of the Supreme Court of the United States, no less the Chief Justice, should not answer to the editorial board of The New York Times. Roberts’ initial vote was the correct one: the individual mandate is an unprecedented intrusion upon the individual liberties of the people of the United States. It is not justified in a system where we have a federal government of limited and enumerated powers. Seven Justices voted that the federal government cannot use federal funding to coerce a state into enacting a federal policy: so why can the federal government use the coercion of taxation to force individuals into supporting a federal policy that would not be otherwise justified under the Constitution? The answer should have been that the federal government can no more justify the individual mandate through taxation than they could demand that individuals quarter soldiers in their homes or pay a tax “penalty.” Both are a naked end-run around the limits placed upon the federal government by the Constitution.

Chief Justice Roberts may have justified his decision by saying that it would preserve the reputation of the Court: but he is wrong. The Court should be above the whims of politics and should act in accordance with law rather than than the opinions of newspaper editorialists. Roberts’ switch on ObamaCare was a betrayal, and however justified it diminishes the legitimacy and the independence of the Supreme Court. That was clearly not the Chief Justice’s intent, but will be the outcome.

It’s Time For ObamaCare To Face A Death Panel

The Supreme Court is currently conducting a marathon three-day session of oral arguments on the challenges to ObamaCare, an almost unprecedented amount of time for the Court to consider any case. But the ObamaCare issue isn’t just another case, or even just another case involving weighty constitutional issues. If the Court upholds ObamaCare’s individual mandate, it will put the final nail in the coffin of the federal government being a government of limited, enumerated powers. If the federal government can force everyone to buy health insurance, there’s not much holding the federal government back from forcing us to buy certain foods, drive certain cars, or engage in any other activity that the federal government deems (in its infinite wisdom) to be for the “common good.”

ObamaCare supporters argue that health care is somehow different from everything else: because we will all use the health care system at some point in our lives, the government has a higher interest in regulating it and making sure that costs are allocated “fairly.” There’s a huge flaw in that argument: it’s a license for unlimited government power. As the example goes, why couldn’t the government make everyone buy broccoli? After all, you must participate in the market for food. Even those wraith-thin supermodels have to eat at one point or another. And broccoli is good for you, which would reduce health care costs. So why can’t Michelle Obama make everyone eat broccoli, or choose to pay a “penalty?”

For that matter, since the Chevy Volt is a massive taxpayer-financed boondoggle, why not mandate that everyone must buy a Chevy Volt or pay a “penalty?” After all, everyone must somehow participate in the “transportation market,” even those people whose only interaction with the market is when they buy their motorized wheelchair to carry their beached-whale bodies to the local buffet. So why not just mandate that everyone buy a Chevy Volt or pay a fine?

In fact, since Disney is taking a bath on John Carter, why shouldn’t they lobby Congress to make everyone in the country see the movie or pay a fine? After all, everyone participates in the “entertainment market” too.

And that’s the major constitutional problem with ObamaCare: a broccoli mandate, a Chevy Volt mandate, a John Carter mandate, they’re all separated from the individual insurance mandate by degree, not by principle.

The individual mandate is the most sweeping power grab of our generation—in terms of real-world impact it makes the PATRIOT Act look timid. And yet there’s been nowhere near the outcry about ObamaCare as they has been about the PATRIOT Act.

The Tax Man (Doesn’t) Cometh

The government has argued that the individual mandate’s penalty really is a tax. The reason why the government makes this argument is because of a federal law called the Anti-Injunction Act. The Anti-Injunction Act is a federal law that prevents people from challenging taxes in courts as a way of getting out of paying taxes. In other words, if the Court bought this argument, the challenges to ObamaCare would fail.

The government’s argument that the ObamaCare penalty really is a “tax” doesn’t save them. For one, it’s an argument that goes against the facts: nothing in the health care law makes the penalty into a tax other than the fact that it was shoved into the Internal Revenue Code. The President and Congressional Democrats were adamant that it was not really a tax, otherwise they would be accused of breaking their promise not to raise taxes on the middle class. Nor is the tax But when it became legally convenient to say that the “penalty” really was a tax, the government is now making that argument. But the penalty isn’t a tax in either form or substance, so that argument is unlikely to go anywhere. And, based on the Court’s skeptical questions in today’s arguments, it looks like the tax argument isn’t likely to carry much weight.

Kill (the) Bill

The problems with ObamaCare are legion, not only is it bad policy, but it sets a precedent that wipes away the system of checks and balances that keep our system of government functioning. The Supreme Court has this opportunity to stand up for the established constitutional order and strike down the individual mandate as a violation of both the letter and the spirit of the Constitution. If they do not, the costs could be grave. There’s not only the risk of eroding freedoms, but there’s a much more concrete risk as well: ObamaCare is bad law. It won’t make health care cheaper, it won’t make it easier for people to see a doctor, it won’t save lives. It will create a system where medical care is artificially limited by the government (both directly and indirectly). If that sounds a bit like a “death panel” concept, it should. Because that’s what has to happen: the government has no magic fairy wand that they can waive over our healthcare system to make health care cost less. The only way to reduce costs is to ration, and that’s exactly what would have to be done in order to make ObamaCare work.

But the Supreme Court isn’t concerned with health care policy, at least not directly. Their concern is with the question of whether ObamaCare is consistent with our constitutional order. It is not. The individual mandate in ObamaCare is no less unconstitutional than a broccoli mandate, a Chevy Volt mandate, or a mandate to see John Carter. The Commerce Clause isn’t a blank check for the government to take effective control of an entire sector of the American economy. The Supreme Court should serve as ObamaCare’s “death panel.”