Why Libertarians and Republicans Should Hug Chief Justice John Roberts.
The recent Supreme Court decision upholding portions of the “Obamacare” health insurance law (also called “The Affordable Care Act” was written by Chief Justice John Roberts, a George W. Bush appointee to the Court.
Many people were hoping the Court would strike down the entire law and some of these people are upset, depressed and disillusioned by the Roberts decision. They should not be.
Many others, republicans, democrats, conservatives, liberals, libertarians, and progressives have exclaimed that the Court decision was a defeat for republicans and a great victory for Barack Obama and his cohorts.
That is simply not true. In fact, it appears that the Supreme Court’s decision is a substantial victory for the challengers. I will explain this assertion below. The discussion will be kept simple and mainly deal only with the major points in dispute and an overview of the Court’s decision. The discussion that follows is somewhat long but please bear with me. It takes some time to present the truth.
The Plaintiffs in the lawsuit were 26 states (represented by 25 republican officials and one democrat), several other groups representing businesses and individuals, with support from a variety of conservative and libertarian leaning organizations. Their main claims were that the law was unconstitutional because the federal government did not have the legal power to require U.S. citizens to purchase health insurance and because the federal government was attempting to use coercion (withholding of federal Medicaid funding) unless the States accepted millions of new Medicaid participants.
The federal government made many defensive claims, primary of which were that Congress could rely upon the “Commerce Clause” in the U.S. Constitution for the insurance purchase mandate or alternatively, that the Constitutional power to tax made the law constitutional. The government also claimed that its threats to withhold Medicaid funding were not unlawful.
Simply put, the republicans (and the one democrat) claimed Congress could not command people to buy insurance and that Congress could not use coercion to bludgeon states into Medicaid expansion. The lawyers for President Obama and the federal government disagreed.
There were quite a large number of possible outcomes but only three basic probable outcomes.
1. The Court could rule that fundamental parts of the statute were unconstitutional and without them the entire statute could not stand so therefore the entire Act would be invalid. This, the Court did not do.
2. The Court could rule that the entire statute was constitutional and let it go into effect unchanged. This the Court did not do.
3. The Court could rule that fundamental parts of the statute were unconstitutional but keep in place the balance of the Act and let most of it go into effect. This was the outcome of the decision announced on Thursday, June, 28, 2012. However, the Court achieved this outcome in a manner that surprised observers and experts.
I believe the Court’s decision (as written by Chief Justice Roberts) while legally dubious in some respects is a also a stroke of political genius that will greatly assist the gradual roll-back of democrat and progressive inspired and imposed extensions of federal government power and control. However, this further roll-back will require further action by the people and careful choices of elected representatives, as Chief Justice Roberts made clear.
The erosion of freedom in the united States of America has a long history. Since the beginning of the “progressive” era in the early 1900’s democrats have successfully eroded individual liberty and State sovereignty, in favor of collectivism. One of the most striking examples of this is the fact that during much of our history the term “united States” referred to the group of sovereign states in a political, economic, and social alliance under a system known as “federalism”(Even though the federal government has no legal authority to force someone to buy health insurance the same is not true of the States. They possess the inherent police power of a sovereign government to regulate the activities of citizens. States can impose individual mandates and several have done so.) . (An excellent explanation of Federalism is given early in Chief Justice Roberts’s decision.) Even as recently as the Second World War, Winston Churchill routinely (and correctly) stated that, “The united States are at war with Germany”. We never hear that anymore. (For example, currently, the United States is at war in Afghanistan.) The difference may seem subtle but it is very important.
Unfortunately, progressives and democrats (assisted by republican ignorance, acquiesce, and intellectual laziness) successfully changed this perception of the united States. Today, people routinely use the term “United States” in reference to a single, and enormously powerful government entity, that dominates its member States and constantly makes ever increasing demands (enforced by criminal sanctions) upon the citizens of the member States.
One of the most powerful weapons used by progressives and democrats has been the “commerce clause” of the U.S. Constitution. This clause allows Congress to regulate interstate commerce. Roberts’s decision says,
“The Constitution authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”Art. I, §8, cl. 3. Our precedents read that to mean that Congress may regulate “the channels of interstate commerce,” “persons or things in interstate commerce,” and “those activities that substantially affect interstate commerce.” The power over activities that substantially affect interstate commerce can be expansive. That power has been held to authorize federal regulation of such seemingly local matters as a farmer’s decision to grow wheat for himself and his livestock, and a loan shark’s extortionate collections from a neighborhood butcher shop.”
Democrats and Progressives have successfully commandeered the Commerce Clause to substantially expand the federal government and infringe on the rights of the people. In the case of “Obamacare” they attempted to use the Commerce Clause to affirmatively require everyone in the united States to buy health insurance. Had they succeeded in this effort the relationship between we the people and our federal government would have been forever changed in a way not authorized by the U.S. Constitution. The effort to subvert the Constitution is referred to as the “individual mandate” and described by Roberts as follows:
“The individual mandate requires most Americans to maintain “minimum essential” health insurance coverage.26 U. S. C. §5000A. The mandate does not apply to some individuals, such as prisoners and undocumented aliens.§5000A(d). Many individuals will receive the required coverage through their employer, or from a government program such as Medicaid or Medicare. See §5000A(f). But for individuals who are not exempt and do not receive health insurance through a third party, the means of satisfying the requirement is to purchase insurance from a private company. Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). That payment, which the Act describes as a “penalty,” is calculated as a percentage of household income, subject to a floor based on a specified dollar amount and a ceiling based on the average annual premium the individual would have to pay for qualifying private health insurance. §5000A(c). In 2016, for example, the penalty will be 2.5 percent of an individual’s household income, but no less than $695 and no more than the average yearly premium for insurance that covers 60 percent of the cost of 10 specified services (e.g., prescription drugs and hospitalization). Ibid.; 42 U. S. C. §18022. The Act provides that the penalty will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties, such as the penalty for claiming too large an income tax refund. 26 U. S. C. §5000A(g)(1). The Act, however, bars the IRS from using several of its normal enforcement tools, such as criminal prosecutions and levies. §5000A(g)(2). And some individuals who are subject to the mandate are nonetheless exempt from the penalty—for example, those with income below a certain threshold and members of Indian tribes. §5000A(e).”
Justice Roberts, joined by four other members of the Court, struck down the “individual mandate” Congress attempted to impose under the auspices of the Commerce Clause. This is a huge defeat for the democrats and progressives who think people exist at the behest of the government, act at the direction of the government, and must do as they are told based upon the wisdom of the government.
On this first and most important point the law’s challengers were clearly and completely victorious. The Court’s decision will now sit as a cornerstone for further lawsuits whenever democrats and progressives in Congress again overstep and attempt to pass laws that go too far past the powers granted by the Constitution. Everyone who opposed the individual mandate should be very happy that the Court clearly and unambiguously struck down the democrat claim that the Commerce Clause gives the federal government the power to command individual citizens to buy a product or service from a private business.
Here’s how Chief Justice Roberts explained it. First, he looked at the social problems caused by the fact that some people do not or cannot pay for their health care and thereby impose the costs of their health care on our society in general.
“The Government’s first argument is that the individual mandate is a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. According to the Government, the health care market is characterized by a significant cost-shifting problem. Everyone will eventually need health care at a time and to an extent they cannot predict, but if they do not have insurance, they often will not be able to pay for it…The Government contends that the individual mandate is within Congress’s power because the failure to purchase insurance “has a substantial and deleterious effect on interstate commerce” by creating the cost-shifting problem.”
Then, he examined the application of the commerce clause, based upon previous court decisions in other cases, all of which were centered on the regulation of an activity, not the regulation of an in-activity.
“The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product,on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.
People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.
That is not the country the Framers of our Constitution envisioned. James Madison explained that the Commerce Clause was “an addition which few oppose and from which no apprehensions are entertained.” The Federalist No. 45, at 293. While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have “always recognized that the power to regulate commerce, though broad indeed, has limits.” Maryland v. Wirtz, 392 U. S. 183, 196 (1968). The Government’s theory would erode those limits, permitting Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” The Federalist No. 48, at 309 (J. Madison). Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.”6
After further discussion, the Court held the following::
“The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to “regulate Commerce.”
The Court decided that the federal government cannot command individuals to buy a product (like health insurance).
This holding will have far reaching effects. It may in future cases serve as a basis for limitations on federal power with regard to other assertions of power based upon the commerce clause, particularly since the Court relied on the original intent of the Framers of the Constitution. The Court rejected the effort of the federal government to vastly expand its power over individuals because it would,
“… fundamentally change the relation between the citizen and the Federal Government.”
This portion of the opinion is extremely good news. It extinguishes the primary argument of democrats and progressives and it sets in place a strong statement regarding the limitations on federal government power.
This part of the Court’s decision is particularly interesting because prior to challenging Obamacare, many republicans favored the idea of a mandate to purchase health insurance. In fact, many Republicans have supported an individual mandate as a means to enforce individual responsibility and limit the cost shifting problem. In 2008 Republican John McCain proposed a mandate that businesses buy health insurance for all employees. (During the 2008 democrat primary campaign Hillary Clinton proposed an individual mandate that like that included in Obamacare.) Ironically, Barack Obama opposed the Clinton proposal and opposed the McCain proposal. He ran strongly against the idea of a mandate to purchase health insurance.
The current presumed republican 2012 presidential nominee Mitt Romney has also favored an individual mandate for health insurance coverage. He implemented such a plan in Massachusetts while he was governor of that State. He has subsequently opposed the federal government mandate based upon the correct assertion that States have the power to require purchase of health insurance but the federal government does not have such power. (States possess the inherent police power of a sovereign government to regulate the activities of citizens. States can impose individual mandates and several have done so. This position was affirmed by the Supreme Court.)
So we see that many republicans have supported health insurance mandates in the past. But they opposed the mandate in Obamacare because of the assertion that the Commerce Clause was the source of the power.
After deciding that the Commerce Clause did not apply Justice Roberts then went further in his analysis of federal power and examined the authority of the federal government to levy taxes. This is where he diverged from the four justices who agreed with him regarding the inapplicability of the commerce clause as a point of authority for the individual mandate.
Here again, we have an interesting situation. During the passage of Obamacare republican opponents frequently claimed that the law was actually an enormous tax bill with billions of dollars of new taxes that would burden the American people and damage the economy. Democrats and Barack Obama claimed the bill was not a tax law and would not impose new taxes on the American people.
On this point, I believe Justice Roberts showed some particular political and policy genius.
Remember that in the recent past republicans espoused an individual mandate to purchase health insurance and that Mitt Romney implemented such a plan in Massachusetts during his term as governor. In fact, there are good arguments to support the idea. It is a means (although imperfect) to force some measure of responsibility on individuals for their health care expenses rather than simply allowing them to drink at the public trough (as “free riders”). With this in mind, and with the free-rider problem in mind perhaps Justice Roberts embarked on a novel way to impose the individual responsibility and limit the cost-shifting “free rider” problem.
Roberts discussed the taxation question at length in his opinion. He ended up affirming the assertion of republicans that Obamacare is essentially a massive tax bill. Ironically, despite the fact that the President’s lawyers argued to the Court that Obamacare is constitutional because it is an imposition of new taxes (as authorized by the Constitution) and despite the fact that the Court agreed with the democrat lawyers, Barack Obama continues to assert that there are no new taxes in his legislation.
The Supreme Court decision makes it clear that republicans were correct when they opposed Obamacare as an unconstitutional expansion of the Commerce Clause and they were correct when they opposed Obamacare because it is a massive tax increase and they were correct when they asserted that the federal government can not coercively force States to take actions they would not otherwise do.
The Supreme Court basically gave republicans everything they have been asking for in the recent past and in past years. It limited Congressional power under the Commerce Clause, it struck down the attempted coercive expansion of Medicaid, and it affirmed that every democrat who voted to enact Obamacare actually was voting for a massive tax increase. However, the Court also found a way to force people to accept some responsibility for their health care costs, essentially affirming the positions of John McCain, Mitt Romney, and many other conservatives.
Some commentators have expressed the ideas that Roberts wrote the opinion is such a way as to placate democrats and progressives. Some have even said he wanted to assure continued friendly acceptance at Georgetown cocktail parties. Others have said his epilepsy medication interfered with his reasoning.
I think these assertions are absurd. Although Roberts’s opinion regarding the taxation power may seem stretched I presume he had something in mind. I presume Chief Justice Roberts is a highly intelligent, skilled jurist, with keen political instincts. I have practiced law for many decades and my observation is that dumb people and irrational people do not rise to the highest levels.
So my thoughts about the Chief Justice’s opinion are that it is well thought out and takes into account legal, political, and social ramifications. With this in mind, allow me to continue.
Once Roberts disposed of the commerce clause argument and put on the brakes with regard to the unconstitutional attempt to regulate inactivity he could have just taken the next easy step and said that without the individual mandate the entire statute could not stand. But he chose not to do so. He actually went out of his way to find a means by which the rest of the statute could stand. He did so by examining the power of the federal government to levy taxes. He decided that the individual mandate and a federal government command to buy health insurance cannot stand but that the federal government does have the authority to levy and collect a tax on anyone who chooses not to buy health insurance.
“Because the Commerce Clause does not support the individual mandate, iti s necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to “lay and collect Taxes.” Art. I, §8, cl. 1.”
The Court ruled that there can be no Congressional “command” for anyone to buy health insurance but the choice not to do so means the person must pay a tax to the federal government. This imposes some financial responsibility on an individual for the decision not to purchase health insurance may help alleviate the cost-shifting or “free-rider” problem.
“Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.
The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read, for the reasons set forth below.”
Roberts then looked at the language of the statute to see if the penalty for not buying health insurance was a tax allowed by the constitution. The decision is that if it walks like a duck, quacks like a duck, and looks like a duck, it’s a duck.
“…the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more.8 It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in Drexel Furniture. 259 U. S., at 37. Second, the individual mandate contains no scienter requirement. Third, the payment is collected solely by theIRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution. See §5000A(g)(2). The reasons the Court in Drexel Furniture held that what was called a “tax” there was a penalty support the conclusion that what is called a “penalty” here may be viewed as a tax.”
The Court decided Congress can tax someone who chooses not to purchase health insurance and then looked at limitations on the power to do so. The taxing power has limitations. Therefore, from now on, if Congress desires some new sweeping regulation of personal behavior it must use its taxing power (not an overly popular tool) and subject itself to the inherent limitations on that power. This is a far different set of circumstances than just claiming (as democrats and progressives have become so good at) that the Commerce Clause is the font of all regulatory power.
“Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority. See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel Furniture, 259 U. S. 20. More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. See Kahriger, 345 U. S., at 27–31 (collecting cases). We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.
Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.
The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.
The Federal Government does not have the power to order people to buy health insurance. Section 5000A would therefore be unconstitutional if read as a command. The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.”
In the next portion of the decision the Court disposed of the Medicaid issues. The law attempts to require States to expand their Medicaid roles to bring in persons who cannot afford to buy insurance. The penalty for failing to expand the Medicaid roles is loss of federal Medicaid funding. States argued that clause is unconstitutional and Roberts agreed, again putting substantial limits of federal power, this time with respect to the States.
The beauty of the Court’s decision as written by Roberts is that it has an apparently calculated political element that is very favorable to those who oppose the recent extensive expansion of federal government power and it puts democrats and progressives in a rather tight spot. Rather than strike the highly disliked Obamacare statute in whole, the Court preserved it as a significant issue with all its shortcomings and problems on display, front and center. Additionally, now its democrat and progressive supporters must defend a huge looming tax increase during a time of economic trouble, high unemployment, low growth, and vast new regulations. The Court’s decision creates the opportunity to hang this albatross around the neck of every democrat and progressive that seeks election this fall.
The Court also opened the way for individuals and businesses to choose their course of action with regard to insurance. Under Obamacare insurance companies will no longer be able to refuse insurance based upon pre-existing decisions. Therefore, people can simply choose to forego insurance, pay the much less expensive federal tax and save thousands of dollars each year. Businesses may be able to allow employees to opt out of insurance coverage and accept a higher salary instead and pay the “no insurance” tax each year. In the event that someone with no insurance gets significantly ill that person can simply buy insurance at the time with no fear of being rejected because of a pre-existing condition.
Such actions will undermine the insurance markets and cause significant problems. But it is not the job of the Court to decide if a statute is stupid or ineffective. It is only the job of the Court to rule if it is constitutional. Congress does stupid things every day. Maybe this time the consequences will be severe enough that people will pay more attention when they vote. Maybe voters need an incentive to exercise better choices. Perhaps the people who wrote and instituted Obamacare deserve to wear it around their neck and be dragged down with it.
It is possible the Obamacare decision may create a rallying point for opposition to the politicians who created this mess. Remember, it is now crystal clear that every democrat voted for a massive new tax liability during the current rolling economic depression. Robert’s pointedly said that it is not the role of the court to protect the people from their choices at the ballot box but in saying so he is making it clear that the electoral process is the means by which people can relieve themselves of onerous laws.
Everyone who is opposed to Obamacare, the fascist liberal/progressive agenda, and the assault on individual freedom needs to remember that citizen sovereignty and freedom are individual rights, not collective rights and must be jealously protected by individuals themselves. Roberts is telling us that the Court can help keep the playing field level and advance the cause of freedom but the final push to victory must come from the people themselves.
I believe that the Obamacare decision by the Court has a football analogy. The Court has put the ball on the nine yard line and it is first down and goal to go. Now it is up to the people who hold the sovereign power to purge government of the tyrants who try to subvert the Constitution.
I think Benjamin Franklin had it right when he was asked after the Constitutional Convention, “Mr. Franklin, what kind of government have you given us?” He replied, “A Republic, if you can keep it.”
Early in the opinion Chief Justice Roberts addressed the responsibility of the people to govern themselves.
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
Late in the decision Roberts again addressed this subject. The second to the last paragraph says the following:
“The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”
It would be nice if the Supreme Court would step in and fully protect us from our elected representatives. But that is not how our system works. Each branch of government is co-equal and restrained in its relations to the other branches.
The clear message from Chief Justice Roberts is that if we the people continue to elect ignorant and stupid representatives who lean toward arrogance and tyranny then we will continue to lose our freedoms and our natural born sovereignty. We should all thank him for sending that message.
The Road to Serfdom is paved with voluntary choices.