Something to look forward to.
All posts in Health Care
Mitt Romney is making it hard to get behind him. But we have no choice. I will enthusiastically vote for Romney in November, at this point because Obama holds the gun that is pointed at our collective head. Unfortunately he appears to be a tone deaf simple politician who lacks understanding when it comes to the great issue of our time, namely, freedom. But he’s all we’ve got and he’s far far better than the alternative.
And who knows. Maybe he’ll eventually rise to the occasion.
Here’s a piece from Powerline on the topic:
When the Mitt doesn’t fit
Romney campaign strategist Eric Fehrnstrom appeared on MSNBC yesterday (video clip below). What is a top Romney campaign adviser doing on MSNBC? Nothing good, as it turns out.
MSNBC’s Chuck Todd extracted Fehrnstrom’s concurrence with Obama that Obamacare’s mandate is not a tax. Taking Fehrnstrom as Romney’s spokesman, we can conclude that Romney begs to differ with Obama’s lawyers (i.e., Obama in court) and with the Supreme Court: it’s not a tax.
What can we learn from this? I offer a multiple choice question.
(a) Romney is not the ideal candidate to don the mantle of opposition to Obamacare.
(b) Romney’s political instincts are lacking on a key campaign issue.
(c) Romney’s campaign requires an overhaul.
(d) Romney isn’t much of a Power Line reader.
(e) All of the above.
This is a long but good write up that is worth reading. Hinderaker is no conservative radical but he is sound, relatively unemotional and clear-thinking. I like his approach.
It Was Always a Tax
Yesterday I posted the rather pathetic video of White House Chief of Staff Jack Lew on Fox News Sunday, where Lew struggled to deny that the Obamacare mandate is a tax, and that the Supreme Court upheld it only as such. When confronted with footage of the administration’s lawyer telling the Court that the mandate is a tax, Lew acted as though he had never heard such a thing before.
In fact, the Democrats have always argued that the Obamacare mandate is a tax, and as such is constitutional. During the debates in Congress, they emphasized this point when the law’s constitutionality came under attack. Max Baucus, Chairman of the Senate Finance Committee, said:
Mr. President, our committee and the HELP Committee have given a lot of thought to the provisions in this legislation. We also gave a lot of thought to the constitutionality of the provisions—how they work and the interrelationship between the power of Congress and the States and what States will be doing, particularly under the commerce clause and the tax-and-spending powers of the Constitution.
It is very strongly our considered judgment, and that of many constitutional scholars who have looked at these provisions—and many articles have been put in the Record—that clearly these provisions are constitutional. The commerce clause is constitutional, the tax-and-spending clause, and the provisions clearly are constitutional.
Mr. President, the bill before us is clearly an appropriate exercise of the commerce clause. We further believe Congress has power to enact this legislation pursuant to the taxing and spending powers.
These were always the Democrats’ two arguments. It is worth noting that they were not arguing in the alternative; there is no inconsistency between the two theories. They always claimed that Obamacare was constitutionally justified by both the Commerce Clause and the Tax and Spend clause. Read more…
From the annals of overreaction, here’s the Journal’s take on Roberts’ opinion. Is the writer wrong? Probably not, with respect to many of the details. But I stand by my earlier post. We live in a democracy, folks, like it or not. Talk about a republic all you want but in those famous cliched words, it is what it is.
So read this. Think about it. Then do something if you care.
A Vast New Taxing Power
The Chief Justice’s ObamaCare ruling is far from the check on Congress of right-left myth.
The commentary on John Roberts’s solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius. All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times.
Now that we’ve had more time to take in Chief Justice Roberts’s reasoning, we have a better summary: politician. In fact, his 5-4 ruling validating the constitutional arguments against purchase mandates and 5-4 ruling endorsing them as taxes is far more dangerous, and far more political, even than it first appeared last week.
This is a minority view. By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama’s entitlement legacy and in a stroke enhanced the Supreme Court’s reputation—and his own. This purported “long game” appeals to conservatives who can console themselves with a moral victory, while the liberals who like to assail the Chief Justice as a radical foe of democracy can continue their tantrum.
It’s an elegant theory whose only flaw is that it is repudiated by Chief Justice Roberts’s own language and logic. His gambit substitutes one unconstitutional expansion of government power for another and rearranges the constitutional architecture of the U.S. political system. Read more…
I’m as interested in what the pundits and legal analysts have to say about the recent Obamacare ruling as the next guy. It was an absolutely fascinating piece of jurisprudence that people, and future courts, will be trying to untangle perhaps for generations to come.
But I’m tired of hearing the whining and moaning and the et tu’s from my conservative allies. First of all, I’ll say again, I don’t like the ruling any more than anyone else. I loathe Obamacare and the intrusions of the federal government in the private lives of others. I fear the collapse of our economy and free society under continued statist-inclined administrations and Congresses. I believe it will happen some day.
But on the whole we’ve been headed in that direction, with some interspersed periods of respite, since at least the 1930s. More government, more entitlements, more taxes, more regulations, fewer freedoms. Has the price been worth paying? That is part of the debate that is going on right now. Wake up and join it.
Let’s consider some facts about Obamacare:
1. During his 2008 campaign Obama was vehemently and openly opposed to the individual mandate.
2. Obama flipped and decided to support the individual mandate once he was safely in office. But he made clear it was definitely not a tax!
3. Obamacare made it to a vote because of an elected Republican.
4. The legislation was passed by a democratically elected Democrat-controlled Congress and signed into law by a democratically elected Democratic President.
5. At the moment the legislation passed very few people seriously thought that the Supreme Court would overturn the new law. (By the way as a rule conservative-minded folks should never hope for salvation from the courts!)
6. As time passed and the arguments were fleshed out, lo and behold, everyone, including the president, began to appreciate that maybe the mandate (and therefore the law itself) might not be constitutional. Oops.
7. All of a sudden even intrade was in on the action, setting the likelihood that the Supreme Court would overturn Obamacare at 70%.
8. And everyone was right, until Roberts pulled the rabbit out of his hat, rejecting Obama’s commerce-based arguments while making other arguments on his behalf that he wasn’t really wanting to make, thereby formally ushering us all into an era that our elected officials in their wisdom have crafted for us.
9. Wait a second! It is a tax!
10. No one was betrayed. It’s just that no one intervened. And we now have as a law a ridiculous and largely unread behemoth set of binding rules that will be funded by a penalty tax levied against people who can least afford to pay. And that doesn’t even touch the inevitable massive increase in costs and inefficiencies as the people who brought you the post office assume the reins of your health care. If it weren’t real it would all be pure comedy.
If you care, then let’s stop the whining and join the fight. November is going to be huge.
“Bitter concurrence” may sound like an oxymoron, but Justice Ruth Bader Ginsberg, joined by colleagues Stephen Breyer, Sonia Sotomayor and Elena Kagan, filed one yesterday in NFIB v. Sebelius, the ObamaCare case.
Ginsburg was full of snark, and her target was Chief Justice John Roberts (citations omitted): “According to the Chief Justice the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive. . . . The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it. . . . The Chief Justice’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation. . . . The Chief Justice also calls the minimum coverage provision an illegitimate effort to make young, healthy individuals subsidize insurance premiums paid by the less hale and hardy. This complaint, too, is spurious. . . . Failing to learn from this history, the Chief Justice plows ahead with his formalistic distinction between those who are “active in commerce,” and those who are not. . . . The Chief Justice accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. . . . If long on rhetoric, the Chief Justice’s argument is short on substance.”
This outpouring of vitriol led the Washington Post’s E.J. Dionne, always conscious of the need for civility, to pen a column demanding her resignation. Oh wait, sorry, that was another justice’s dissent in another case. Still, a call for Ginsburg’s resignation is a “fairly possible” construction of the Dionne column.
If Ginsburg’s side won the case, why is she so angry? Because on the central constitutional question at issue, Roberts in fact issued the legal left a powerful rebuke. To quote from his opinion–a portion of it in which he spoke only for himself but with which the four dissenters (that is, the actual dissenters–Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito) agree: “The Commerce Clause is not a general license to regulate an individual from cradle to grave simply because he will predictably engage in particular transactions.”
Those of us who follow the Supreme Court closely can name cases in which the court reached the right decision but did so with faulty constitutional analysis. Sometimes this has long-lasting negative repercussions. One of our favorite examples is University of California Regents v. Bakke (1978), in which the high court by a 5-4 vote struck down a scheme of racial discrimination in college admissions.
Justice Lewis Powell was in the majority. But he wrote a lone opinion expressing the view that the goal of having a “diverse student body” justified racial discrimination. Colleges that wished to practice discrimination exploited this loophole, and in 2003′sGrutter v. Bollinger, Justice Sandra Day O’Connor adopted it as a constitutional doctrine, albeit an intellectually frivolous one, for reasons Justice Anthony Kennedy made clear in his dissent. Nearly 35 years after Bakke, discrimination persists thanks to Justice Powell’s half-baked notion.
In NFIB v. Sebelius, Chief Justice Roberts did something of the opposite. He provided some splendid analysis of the Commerce Clause, setting a precedent that may have beneficial repercussions in coming years. He then proceeded, as the dissenters wrote, “deep into the forbidden land of the sophists.” He engaged in a convoluted reconstruction of the statute in order to reach a bad result.
That drew some revealing plaudits. Jonathan Chait of New York magazine: “Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted. I have rarely felt so relieved.”
The “crisis of legitimacy” that Chait claims Roberts averted would have consisted of people like Chait screaming bloody murder about a 5-4 decision whose result they didn’t like. A 5-4 decision whose result they like is just dandy. In other words, the source of the hypothetical “crisis of legitimacy” was not the decision or the 5-4 vote but the left’s rejection of it.
James Taranto on NFIB v. Sebelius.
We’d go a step further and say that the left in America is experiencing its own crisis of legitimacy, in part as a result of the welfare state’s crisis of resources. The combination of slow economic growth and already sclerotic government makes it increasingly difficult to expand the latter in order to maintain the loyalty of Democratic voting blocs. The Democrats’ and public-sector unions’ political failures in Wisconsin are the most dramatic example of the increasingly adversarial relationship between taxpayers and those who are rewarded with tax dollars for supporting the party.
The pre-emptive attacks on the Supreme Court were of a piece with the increasingly desperate and absurd charges of racism that those on the left hurl at their opponents. Again, they are projecting their own illegitimacy onto others.
The most charitable way of describing Roberts’s apparent motive in upholding ObamaCare is that even as he was advancing good legal doctrine, he wished to shield the court from a political storm. That is an understandable impulse, though we are skeptical that yielding to it was wise.
“Liberals who waxed hysterical about a politicized court need to reckon with the fact that the most ‘political’ of all the opinions on the health care law was the one that ultimately upheld it,” writes the New York Times’s Ross Douthat. Actually, they don’t need to reckon with it unless they suddenly develop intellectual integrity.
But a reckoning may be in order for Chief Justice Roberts. He appears to believe that in order to get beyond politicization, he must first take account of politics. Perhaps instead the way to stop deciding cases on the basis of politics is to stop deciding cases on the basis of politics.
Omri Ceren is spot on in many respects. As I mentioned before, I think Kennedy got it right in his dissent and Roberts should have probably just stuck to his conservative guns. The fact is the political war over the direction of our country will not end by conservatives throwing bones and asking for peace.
You cannot rely on judicial nuance to carry votes. And while Obama and Pelosi are gloating now, it will only get worse as we approach November. Democrats will not claim victory on Obamacare with an asterisk.
But what I come back to is the fact that ultimately it is up to the people, the masses, when it comes to what kind of government they want. And we might as well get this show on the road.
I am not optimistic at all that we will win this battle in November. But one thing that Roberts has done for us is drawn a clear line in the sand.
You are either for it or against it. The people will decide.
November’s vote will go down as one of the most important elections in our nation’s history. You watch. Or better yet, vote.
Clarification on earlier post: as would be expected, the four liberal justices, for whom Roberts wrote the majority opinion, opted out of Roberts’ tax rationale for the individual mandate based on their belief, with Pelosi, that Congress’ powers are essentially unlimited under the commerce clause.
That said, were it not for Roberts sleight of hand in finding this little tax gem, Obamacare would have failed in its entirety.
It really is a remarkable outcome, with Roberts writing the majority and Kennedy the dissenting opinion. I think it supports the notion that much of what’s left of American intellectual vigor resides in conservative thought.
Charles Krauthammer: Why Roberts did it
Thursday, Jun 28, 2012
It’s the judiciary’s Nixon-to-China: Chief Justice John Roberts joins the liberal wing of the Supreme Court and upholds the constitutionality of Obamacare. How? By pulling off one of the great constitutional finesses of all time. He managed to uphold the central conservative argument against Obamacare, while at the same time finding a narrow definitional dodge to uphold the law — and thus prevented the court from being seen as having overturned, presumably on political grounds, the signature legislation of this administration.
Why did he do it? Because he carries two identities. Jurisprudentially, he is a constitutional conservative. Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the court’s legitimacy, reputation and stature.
As a conservative, he is as appalled as his conservative colleagues by the administration’s central argument that Obamacare’s individual mandate is a proper exercise of its authority to regulate commerce.
That makes congressional power effectively unlimited. Mr. Jones is not a purchaser of health insurance. Mr. Jones has therefore manifestly not entered into any commerce. Yet Congress tells him he must buy health insurance — on the grounds that it is regulating commerce. If government can do that under the commerce clause, what can it not do?
“The Framers . . . gave Congress the power to regulate commerce, not to compel it,” writes Roberts. Otherwise you “undermine the principle that the Federal Government is a government of limited and enumerated powers.”
That’s Roberts, philosophical conservative. But he lives in uneasy coexistence with Roberts, custodian of the court, acutely aware that the judiciary’s arrogation of power has eroded the esteem in which it was once held. Most of this arrogation occurred under the liberal Warren and Burger courts, most egregiously with Roe v. Wade, which willfully struck down the duly passed abortion laws of 46 states. The result has been four decades of popular protest and resistance to an act of judicial arrogance that, as Justice Ruth Bader Ginsburg once said, “deferred stable settlement of the issue” by the normal electoral/legislative process.
More recently, however, few decisions have occasioned more bitterness and rancor than Bush v. Gore, a 5 to 4 decision split along ideological lines. It was seen by many (principally, of course, on the left) as a political act disguised as jurisprudence and designed to alter the course of the single most consequential political act of a democracy — the election of a president.
Whatever one thinks of the substance of Bush v. Gore, it did affect the reputation of the court. Roberts seems determined that there be no recurrence with Obamacare. Hence his straining in his Obamacare ruling to avoid a similar result — a 5 to 4 decision split along ideological lines that might be perceived as partisan and political.
National health care has been a liberal dream for a hundred years. It is clearly the most significant piece of social legislation in decades. Roberts’s concern was that the court do everything it could to avoid being seen, rightly or wrongly, as high-handedly overturning sweeping legislation passed by both houses of Congress and signed by the president.
How to reconcile the two imperatives — one philosophical and the other institutional? Assign yourself the task of writing the majority opinion. Find the ultimate finesse that manages to uphold the law, but only on the most narrow of grounds — interpreting the individual mandate as merely a tax, something generally within the power of Congress.
Result? The law stands, thus obviating any charge that a partisan court overturned duly passed legislation. And yet at the same time the commerce clause is reined in. By denying that it could justify the imposition of an individual mandate, Roberts draws the line against the inexorable decades-old expansion of congressional power under the commerce clause fig leaf.
Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce clause contained, constitutional principle of enumerated powers reaffirmed.
That’s not how I would have ruled. I think the “mandate is merely a tax” argument is a dodge, and a flimsy one at that. (The “tax” is obviously punitive, regulatory and intended to compel.) Perhaps that’s not how Roberts would have ruled had he been just an associate justice and not the chief. But that’s how he did rule.
Obamacare is now essentially upheld. There’s only one way it can be overturned. The same way it was passed — elect a new president and a new Congress. That’s undoubtedly what Roberts is telling the nation: Your job, not mine. I won’t make it easy for you.
The spin has already started about the Supreme Court’s ruling on Obamacare. Obama Pelosi & Co are gloating (“It’s constitutional, b*tches”) and Republicans are saying “it ain’t so bad” and vowing to make the presidential election a referendum on the Obamacare legislation.
Now I need to say at the outset that I haven’t yet made my way through Roberts’ and Kennedy’s opinions but I’m looking forward to it. But I’ve read enough of Roberts’ words to be immediately struck by his genius.
To borrow a phrase from our president, let me be clear. I’m not saying he’s a genius because he gamed the system or because he somehow in partisan fashion set the Democrats up for failure. Instead, he is ingenious because he (1) remained pure to his conservative judicial philosophy while (2) reining in his liberal colleagues on the court to his view and (3) forcing the president and his allies to accept victory at the risk of being villainized for imposing the greatest single tax hike on the American people in the history of our country (which from a Republican strategist’s point of view offers the added benefit of allowing the president to declare victory only if he is also willing to accept the moniker of liar).
While Roberts had to understand that a vote against Obamacare would result in the united proclamation among the media and talking heads in Washington that the verdict was rigged and he is a racist, I don’t think Roberts wrote what he wrote because he was afraid of such slander.
I think Roberts wrote what he wrote because it’s what he believes. I won’t argue with whether he was right, but he is smart, thoughtful and he believes that it is not the Supreme Court’s job to legislate. That is a great starting point.
Having said all that, I do look forward to reading Justice Kennedy’s dissenting opinion. I’m not a Constitutional law expert, but I’m inclined to believe that it’s the Court’s minority that got it right as a constitutional matter. As a matter of law, it is hard to swallow that Congress can levy a tax (a) that the law’s drafters and proponents always insisted wasn’t one or (b) that is based on the inactivity of American citizens (for not purchasing health insurance–isn’t that really just a penalty that Congress is asking the IRS to enforce?). That kind of interpretation requires a special kind of judicial sleight of hand.
However, what it seems that everyone on the Court agrees on is that the individual mandate to purchase health insurance can only pass muster as a law if it is understood as a tax. Remember, Roberts wrote the opinion on behalf of the four “liberals” on the Court, while Kennedy wrote the dissent for the “conservatives.” The Supreme Court at least has drawn a line in the sand that, contrary to Pelosi’s idiotic remarks, there is a limit (perhaps theoretical) to the federal government’s powers.
It may not be long, after the initial glow of victory has begun to fade, before Obamacare advocates start to realize that the Court’s decision has put them and their big government party in a bit of a bind. While Democrats like to be the ones who give away free stuff, they will not like being saddled with the now explicit burden that their most recent generosity is only possible by a radical new increase in taxes on the middle class.
My guess is that once this realization sinks in the criticism of Roberts will begin anew and the Obama spin (aka lies) will be even harder to stomach.
Say what you will about his initiative in Massachusetts, he’s on record now that among the first things he’ll work to do is to repeal the disaster that is Obamacare. Romney said this morning he’d like to set up health care on more of a consumer market model.
The Obama campaign’s counter to Romney is yet another reason not to vote for its truth-bending and demagogic candidate:
The Obama campaign hit back at Romney’s policy view in a statement Tuesday: “This morning, Mitt Romney promised that if he’s elected, insurance companies will be able to discriminate against Americans with pre-existing conditions, charge women higher premiums than they charge men for the same coverage, and kick young adults off their parents’ plans when they graduate high school or college. . . . For too long, American families have faced a choice between going bankrupt to afford the care they need or going without that care at all, and Mitt Romney wants to take us back to that time.”
Come again? The sheer brazenness of Obama and his troops as they dive to the gutter in recasting and novelizing comments to scare the poorest and least educated Americans (while providing a script for his unflappably supercilious New York and LA elites) is remarkable if not impressive.
Here’s the simple truth: Our country is broke. We spend trillions more than we bring in. We cannot afford Obamacare (without even getting to the question of whether we want it). In fact we can’t even come close to affording the ill-conceived, largely unread, byzantine piece of legislation that is Obamacare.
Obama doesn’t want to have that conversation though. It’s not unlike Schumer’s specious argument that we have to keep spending what we don’t have or else we’ll have rioting in the streets (aka Austerity).
At least Romney is dealing with the issue.