Justice Ginsburg’s concurring opinion attacks the only part of the court’s ruling that had broad support (seven justices, excluding only Ginsburg and Sotomayor). This is the finding that the expansion of Medicaid provides an unconstitutional penalty insofar as the Federal government withholds funding for existing Medicaid programs as a punishment for a state’s refusal to adopt the expansion of Medicaid to those who are not poor.
Ginsburg points out that “prior to today’s decision . . . the Court has never ruled that the terms of any grant crossed the indistinct line between temptation and coercion.” Previous decisions had recognized, in theory, that Congress might pass a law providing grants whose terms would make it impossible for the states to refuse, but the Court always found a reason to accept the law being challenged.
The Washington Post predicts that this portion of the Roberts decision will produce “challenges to federal conditions across a wide spectrum of programs, including but not limited to the environment, education, and transportation.” There can be little doubt that many attorneys general will consider the possibility of removing onerous conditions to Federal funding by challenging them in court under this precedent.
Perhaps these challenges will amount to little, with the Supreme Court refusing to rule that Federal mandates go too far. Nevertheless, this could make it difficult for Congress to impose its will on the states through grants, and might even make such grant programs less attractive to members of Congress.
Too little attention has been paid to a passage on page 6 of Chief Justice Roberts’ opinion on ObamaCare. In explaining the Supreme Court’s role in American government, Roberts said “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.”
I would not have been so surprised if Roberts had used language more neutral and scholarly (e.g. “Political disputes must be settled in the political arena, at the ballot box.”) To talk so bluntly about throwing people out of office is more unusual. Given the consistent showing in the polls that a majority of Americans want to get rid of ObamaCare, Roberts has included in his opinion a virtual endorsement of Mitt Romney over Barack Obama. He has said to the voters, “ if you want to get rid of ObamaCare, throw out the President”.
Justice Roberts’ decision upholding the individual mandate of ObamaCare relied on the Congressional power to levy taxes. There can be no question that the taxing power exists, and it is quite broad. However, to say that it is unlimited in scope is wrong.
Roberts phrases it this way. “The Government does not claim that the taxing power allows Congress to issue such a command. Instead, the Government asks us to read the mandate not as order¬ing individuals to buy insurance, but rather as imposing a tax on those who do not buy that product.” This was the argument that persuaded Roberts.
If Roberts is correct, then Congress (before the ratification of the First Amendment in 1791) had the power to tax people for failing to join a church, or to tax churches for failing to participate in a government-proclaimed day of prayer. (Thomas Jefferson, as a state legislator, introduced a bill to do exactly that to Virginia churches.) Congress could amend ObamaCare to impose a tax on people who fail to join health clubs. It could tax people who fail to buy new cars at certain intervals (as yet a further payoff to the auto unions).
Amazingly, the New York Times has published a column by Richard Epstein describing the danger of this broad interpretation, and why it is not constitutional. This is must reading for every conservative.
Roberts did include one valuable concession in his opinion. He found that the penalty was actually a tax because it did not compel people to act in a certain way. Choosing to pay the tax is a genuine alternative, and he pointed to estimates that four million people will choose to go without insurance. Had the penalty/tax been so high that rejecting insurance would have been unthinkable, Roberts’ own logic would have required him to reach a different conclusion. He allows the taxing power to influence decisions, not to compel them. That is a weak limit, but at least it sets a boundary.
Some who expected ObamaCare to be struck down are finding comfort in the Supreme Court’s rejection of the interstate commerce clause as a constitutional justification for ObamaCare. Virginia Attorney General Ken Cuccinelli and columnists Sean Trende and George Will all make the case that this decision, by continuing a string of decisions putting limits on the commerce clause power, will make things more difficult for liberals in the future. You can read their comments in the links below.
They are correct in being hopeful that this decision could bring long-term benefits, but several caveats are essential.
First, the four liberals on the court refused to give an inch on the commerce clause. They continue to believe that it grants Congress unlimited power over everything (except abortion). Adding just one more liberal justice to the Court would sweep away everything that may have been gained.
Second, as Justice Thomas pointed out in his individual dissent, even the majority ruling against the commerce clause still accepts precedents that grant enormous power to Congress. Only Thomas insists on a strict definition of commerce, while the other four continue to expand the commerce clause power beyond commerce itself to anything which “substantially affects” commerce. As usual, only Justice Thomas is willing to remain faithful to the Constitution.
Today’s Supreme Court decision upholding the individual mandate and other key points of ObamaCare is a shameful moment in constitutional history. In addition to ignoring the clear constitutional violations in the mandate, the decision will encourage this and future presidents and Congresses to force upon Americans a never-ending list of mandates.
“Five Justices of the Supreme Court today handed President Obama a massive victory for his promise to ‘fundamentally transformAmerica.’ By upholding the mandate, the Court creates a dangerous precedent to impose unlimited mandates on the American people for virtually any purpose,” said Peter J. Thomas, Chairman of The Conservative Caucus.
A “living constitution” is the recipe for tyranny,” Mr. Thomas warned, “and in today’s decision, Chief Justice Roberts compromised with liberal Justices to preserve the mandate many believe is unconstitutional.”
Due to this decision, conservatives must work harder than ever for complete repeal of ObamaCare. We must also demand conservatives in both the House and Senate vote for full repeal, and in drafting a GOP reform bill not seek compromises with Democrats which would only trim off a few elements. Drafting a conservative reform bill should best wait until January when a more conservative House and Senate may be seated.
A true reform bill would actually lower costs, restore consumer choice, and get government out of managing our health care.
TCC has analyzed some elements which a successful plan should include:
- A universal tax credit or voucher sufficient for all Americans to buy a solid health insurance package (exempting initially, Medicare, the VA, and companies who still want to keep their plans for workers).
- Create a national market where individuals can buy from any insurance company.
- Changes to insurance company practices (no cherry picking, etc.).
- Common-sense tort reform.
- Allowing companies of any size to pool their employees to get lower premiums (buy like Sam Walton did).
- Support for health savings accounts, which provide incentives for not using insurance for trivial health concerns.
Rather than accept this defeat, this must become a rallying cry for conservatives. We can repeal ObamaCare.
The Conservative Caucus rejects the Supreme Court’s interpretation of the Constitution on ObamaCare.
“Justice Antonin Scalia certainly got it right when he wrote in his incisive opinion concurring in part and dissenting in part from the opinion of the majority in the Arizona illegal immigration case, that “to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.”
What Justice Scalia was really saying is that the reason Arizona was before the Court was not because state officials acted in a lawless manner, but because President Barack Obama was acting in a lawless manner.”
Virginia Congressman Gerry Connolly, in a June 5 speech supporting tax increases as a way of fighting the deficit, pointed out that President Ronald Reagan signed into law tax increases in 1982, 1984, 1985, 1986, and 1987.
Connolly did not address the question of whether these tax increases reduced the deficit. Such facts would have been highly inconvenient to his argument. In 1982, when the first tax increase was passed, the Federal deficit was $128 billion. In 1988, Reagan’s last full year in office, the deficit was $155 billion. The tax increases never succeeded in getting it down to anywhere near $128 billion during Reagan’s two terms.
Reagan’s successor, George H. W. Bush, was persuaded to support a massive tax increase in 1990. The deficit, which had been $221 billion that year, increased to $$269 billion and $290 billion the next two years.
Liberals have talked a lot about the possibility that their voters would become more motivated if the Supreme Court struck down ObamaCare. They have said little or nothing about how voters might react to the Supreme Court’s decision on Arizona’s SB 1070. Yesterday’s decision to strike down much of the law sent a clear message to Americans – only the Federal government will be allowed to enforce immigration laws, and the only way to change current policy is to replace the President with someone who will obey the law.
Whether Mitt Romney can overcome his wavering and ambiguity on the immigration issue may determine whether he will be the next president. If he fails to take a firm stand in favor of enforcing the laws as written, he will gain no benefit from the Supreme Court’s decision.
The Court’s ruling is, in one very narrow sense, a victory for Federalism. It recognizes that the Federal and state governments each have their own sphere of activity, and should not overstep those bounds. However, the Court’s liberals see those limits as applying only to the states. The Federal government is assumed to have the authority to interfere in any activity, anywhere, in any way it chooses. True federalism recognizes that this “wall of separation” also puts boundaries on Federal power (and Thomas Jefferson, when he wrote those words, was referring specifically to the fact that the Federal government’s delegated powers prevented it from interfering with the established church in Connecticut).
Harvey Golub proposes an interesting method of reforming the tax system: “A Simple Tax Code Is a Fair Tax Code.”
This is worth a read, for Golub supports eliminating deductions, simplifying the tax code, and eliminating the corporate tax.