The Day After

Yesterday was shocking and depressing for people with faith in the Constitution and freedom. Much of the day was filled with people trying to make sense of the Obamacare (now ObamaTax) decision.  So see a broader perspective for what Justice Roberts did. The best of these I read was Sean Trende’s piece, “The Chief Justice’s Gambit," which was definitely worth reading.

But I am not in favor of a “broader” purpose for the Supreme Court. Just tell us whether a law passes constitutional muster or not. And if the explanation is so obscure that plain-thinking Americans familiar with the Constitution itself can’t see where you’re coming from, maybe we need to mostly ignore the reasoning as far as precedent is concerned.

One good thing is that the majority of the court (Roberts plus the four voting against constitutionality) state clearly that the mandate cannot be construed as a constitutional extension of the commerce clause. In fact, Roberts spent so many pages (about 20) saying that, the immediate assumption by CNN and Fox News was that the law must have been struck down, which they needed to walk back a few minutes later.

What I think should not have happened was that, rather than throw out a bad law (that’s a euphemism for what this monstrosity actually is), Roberts went out of his way to find a way to allow it. He declare that the mandate is simply a tax. The biggest tax on middle and lower class Americans (or maybe bigger than on any people at any time in history)—even though Obama et al spent a great deal of energy and words asserting that it was not a tax. [Ironically, in oral arguments, the administration’s lawyer, Verilli, had to argue one day that the law was certainly not a tax, and another day that it certainly was; even Sotomayor pointed out that you can’t have it both ways.]

This law was passed without any help from Republicans—at a time when no GOP help was needed. This is all, in its entirety, the fault of Democrats, who had total control of both houses at the time. Still, it required finagling, bribery, and midnight manipulation to shove it through one weekend night in March 2010. I think we can say without doubt, if this had been billed as a huge tax on low and medium earners, there is no chance it would have passed.

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One description I saw of how this mandate/tax works goes something like this:

Customer: No thank you. I don’t want to purchase that pack of  gum.

Salesperson: OK, tax on that will be $2.35. 

I spent much of yesterday doing summer reading: 1776, by David McCullough. I think I’ll post more about this next week, in honor of the 4^th of July. But the idea that struck me was that, during the early part of the Revolutionary War, the good guys were severe underdogs. If they could have stepped back and seen how outgunned they were, they might have resigned themselves to the tyranny. But they trusted Providence (the hand of God intervening to help them) and just did whatever they could conceivably do for their great cause. They were mostly everyday people, unqualified for what was required of them. And yet we know the outcome.

It may be that what we just experienced was the equivalent of Bunker Hill:

Bunker Hill was proclaimed a British victory, which technically it was. But in plain truth His Majesty’s forces, led by General Howe, had suffered more than 1,000 casualties in an appalling slaughter before gaining the high ground. As was observed acidly in both London and Boston, a few more such victories would surely spell ruin for the victors (p. 8).

We suffered a literal loss yesterday. But it may be that the limit to the commerce clause, as well as the ability for states to opt out of the Medicare section—followed by determined follow-up by voters and their new representatives this November—this “victory” by the anti-freedom side will surely spell their eventual ruin. With the help of Providence, may it be so.

Constitutionality Questions

Yesterday the big news was that the Supreme Court will take up the question of the constitutionality of Obamacare. And not just the question of the legality of the individual mandate, but all the questions related to this legislation at one time. 

There’s good summary at the Law Blog of the Wall Street Journal. 

These are the questions the Court will address: 

• Can a challenge be brought to the law at all?
• Did Congress overstep its bounds in requiring every American to purchase health care?
• If the mandate is found unconstitutional, does the entire law need to come down, or can the rest of the law still stand?
• Are the law’s Medicaid amendments constitutional?

Some years ago I was talking with a friend, who was then a constitutional law professor, about some issue that seemed simple to me; he pointed out that it took years of study and practice to obscure things as well as the court justices can do. So, being unencumbered, here is my opinion on the four points, ahead of the hearing. 

The answer to the first question is yes. It would be better if we didn’t have to bring suit concerning a law enacted by our elected officials. But this one was pushed through using shady late-night, weekend, procedural technicalities to avoid succumbing to the will of the people or even the actual majority of elected officials—even during a time of complete Democrat control of both houses.  

The question itself relates to whether the penalty for not buying insurance is a tax. Ahead of passing the law, Obama’s team insisted that it was a penalty, not a tax. If so, then there is no roadblock to bringing the suit. But now they are claiming it is a tax. Supposedly, if it’s a tax, then you have to wait until it is enforced before it can be shown to be subject to a lawsuit, and these particular “taxes” wouldn’t be enforced for another year or two. This is a semantic question only, twisting words to suit themselves—as the administration would do with the entire 1200 pages of words in this boondoggle. 

The second question relates to the commerce clause of the US Constitution. This is Article I, Section 8, Clause 3: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The only difficulty is the definition of “regulate.” Over the years we have come to think of it as “make rules of control over,” but at the Constitution's writing the word meant, “to make regular, or expected.” How do you make sure international and interstate commerce can take place? Mostly get out of the way. Deal with trade agreements internationally, and make sure states don’t set up illegal embargoes against their fellow states. It’s about making sure free exchange can happen, not about controlling details of such exchanges. 

Is there anything in there to imply that the federal government has an enumerated power to force a purchase by every citizen simply because that citizen has been born? No. I’d say that’s a serious overreach. If you skew the clause to mean the federal government is allowed control over any issue that can affect the economy in any way, then you have granted total power to the government over all personal choice of how one uses the results of one’s life work. That is slavery, not a limiting enumerated power at all.  

The answer here, then, is yes, Congress did overreach, and the individual mandate is unconstitutional. That is how the Supreme Court must rule. The concern I have is that such a simple question of our personal freedom depends on the opinions of nine unelected individuals in black robes. If they rule correctly, great. But if they do not, that doesn’t change the fact that the law goes against the letter and spirit of the freedom-ensuring US Constitution. 

The third question is another yes. There is so much infrastructure in that huge bill, most of it we’re still unaware of, that are intrusions into our lives, we need to scrap the entire thing before the damage becomes endemic. There should be nothing about student loans in there. There should be nothing about taxing home sales and purchases in there. There should be nothing in there about setting up health clinics on school campuses in an effort to subvert parental rights. There should be nothing that discourages businesses from providing health care as a benefit to employees, thus forcing more and more employees to have no other option than a socialized federal government option.  

Is there any small piece of the law that might be Constitutional? Maybe. Show me. But, if so, couldn’t that particular piece be resubmitted for debate and vote as a bill on its own merits? 

The fourth question is technical. It appears to me that the effects on Medicaid are negative for the truly needy. My personal view, always, is that the federal government has no business using tax money for charity. There is no enumerated power granting such power. That is not to say that we as a people should ignore those truly in need. The answer is a combination of free market and philanthropy—both of which are hindered when the government steps in the way. How we get there from where we are, I don’t know. We have to do it without abandoning those who have had promises made to them and are truly in need, but we have to get back to the Constitution.  

I hope getting back to the Constitution will be the result of this hearing. It looks like arguments will be heard by sometime in March, and a decision should come down in June. This is well ahead of the election, and may have an effect either way. Whichever way the court decides, the other side will use it as an argument for recruiting votes to get things the way they want. And it will also point out the importance of having the right president at a time when additional Supreme Court justices will be chosen.