Supremely Unsettling – the Battle is Joined

The Supreme Court was at its unpredictable and unfathomable best with its decisions on the Arizona immigration law and Obamacare.  It is even being called a constitutional crisis.  But the bottom line is that the hot potatoes have now been tossed back into the political realm, and a lot more people have greater reason and motivation to vote for Romney and Republican Congressional candidates.

Apparently the Obamacare decision was unusually rancorous and divisive within the court.  The 4 dissenters didn’t sign it or refer anywhere in their opinion to the majority’s (Roberts’) opinion/arguments – unheard of for many decades.  And the language of the dissent is scathing in its condemnation of unprecedented governmental encroachment.  (Prager guest July 3).  The dissenting opinion has been described as much more coherent and convincing.

The indications in oral arguments before the court were that the administration’s case was extremely weak, and the decision was a surprise.  More so were the rationale and the justices who took each side.  Although many warned us to be prepared for anything, based on previous attempts at predicting the court.  And apparently there was a mixed bag, with something for everyone – Solomonesquely splitting the baby.  It also left things even more confused, unsettled and rancorous than before.  But what else could be expected – “garbage in, garbage out.”

A Tax by Any Other Name

A super-majority (7) found that the administration’s argument that the individual mandate (to purchase health insurance) was allowable under the commerce clause, was invalid.  Which would seem to limit Congress’ powers?  But then by some stretch and contortion of logic, it was found by Roberts & the bare majority that it was within the taxing power of Congress.  Which would seem to allow them to call any mandate a tax, and within their power – i.e., unlimited.  Which goes back to Scalia’s broccoli argument?

This mystified both sides of the Obamacare issue.  Of course Congress & the administration denied it was a tax during the political process leading up to passage of the bill, instead using the commerce clause argument (regulating interstate commerce, imposing penalties).  Then when they went before the court, they began to argue it was a tax, and therefore falls within the anti-injunction act, which says that a tax cannot be appealed until it goes into effect – 2014.  Interesting to note here that the benefits kick in even now, seductively addicting the electorate before sticker shock sets in.  Even swing justice Kennedy gave them grief in oral arguments for their vacillation on whether it was a tax or not.  Texas attorney general Abbott indicated that no one on either side ever really thought it was a tax, so this ruling took all by surprise.

And now that the issue is back in the political realm, and the GOP is capitalizing on the unpopularity of raising taxes, the administration denies it is a tax (talk about flip-flops!).  After all, this is now then one of the biggest tax increases in U.S. history, and counter to Obama's promise not to raise any kind of taxes on those earning under $250K.  But if the Democrats want to insist it’s not a tax, then they need to withdraw Obamacare as unconstitutional, because the Supreme Court has ruled that’s the only way it can stand.  If they want the benefits, they must also accept the negative consequences.  And Roberts apparently had to stand on his head to interpret it as a tax, so as not to overturn this major piece of legislation.

Some note that it is easier to repeal/change as a "tax" than as some fundamental right under the commerce clause (which they rejected).  Certainly at least it means a simple majority (51%) in Congress is needed to repeal a tax through the budget reconciliation process, vs. a super-majority (60%) if otherwise. 

Back into the Political Realm

Roberts did apologetically acknowledge (as did Romney) that the finding of constitutionality was in no way an endorsement that Obamacare is good policy (or affordable or....).  It may be legal to spend one's way to bankruptcy, but that doesn't mean it's a good idea.  And he basically tossed the hot potato back to the electorate, who decide what laws they want and how much tax they are willing to pay, and how many goodies government can afford. 

One aspect of Obamacare that was struck down was the provision that federal funding for Medicaid could be withheld as a penalty from states opting out of the insurance exchange.  I believe this was the aspect for which Romney had promised to grant all states waivers on his first day in office, so that is no longer necessary.  The economic viability of Obamacare would seem to be threatened by that (almost as much as if the individual mandate had been struck down), depending on how many choose to opt out.  And considering that I believe over half the states joined the lawsuit against Obamacare, that’s a pretty good indication. 

Considering that it’s now back in the political realm, in an election year, that it’s now considered a tax, and has always been unpopular by a super-majority of general voters, employers and health professionals, with the state opt-out option, and the repeal (or at least de-fund) threshold being lower, Obamacare does not look as sure as the superficial Supreme Court sustainment might imply.  The term “pyrrhic victory” occurred to me before I’ve heard it used by various talking heads like Dick Morris.  Certainly it is firing up the conservative base like never before – if they can’t seem to get excited about Romney’s personality (what’s wrong with substance over style?), they seem to be getting excited about this (& the debt, etc.).  The Romney campaign saw the donation floodgates open – over $4 million in the first 24 hours after the Supreme Court decision.

But of course the Democrats want to declare victory and “move on” and focus on the economy.  Why should we just “move on,” as the Democrats want?  It was their tireless persistence (“we’ll pole vault over if we have to”), back-room deals (the “Louisiana Purchase”, “corn-husker compromise,” etc.), their lack of openness (“We’ll have to first pass the bill to see what’s in it”), and barest of non-bipartisan votes despite the will of the American people that did it.  Two can play that game of persistence, only this time with the legitimate popular vote of the American people in the coming election.  Just as we saw in the 2010 election – this one will finish putting us over the top.  I say remember the words of John Paul Jones – “damn the torpedoes – full speed ahead!”  If they want to accuse us of wasting time on a “decided” issue, how about Obama’s first year focused on this monstrosity, rather than the economy?  Now that THEY’VE driven the car deeper into the ditch, WE now have the will and the people to get it out.

The Economic & Health Care System Impacts

In wanting to declare victory and “move on” and focus on the economy, Democrats are conveniently missing the point that Obamacare is now some one-sixth of the economy by itself, but is having far-reaching impacts on the rest of the economy.  Many especially smaller employers are now saying they won’t be able to afford to hire more employees under the burdens imposed, on top of the tax uncertainties hanging over their heads – a significant factor in keeping the unemployment rate stuck where it is in the longest recession recovery on record.

And among the other hollow promises of Obama, Obamacare will not decrease the costs of healthcare to individuals and families, but will actually increase it by about the same amount as the promised decrease.  Just like his promise to halve deficits, but he has delivered doubled deficits.  When will America wise up to his double-speak?  Oh, sure, he sounds convincing, but look what he delivers.

Nor would many be able to maintain the current coverage plans of their employees, as insurers would be unable to compete against the government exchange and rules for non-denial for pre-existing conditions, etc.  So their employees would not have the option Obama promised to keep their current plan, but would be forced into the government exchanges with all their rules and limitations.  And the government-run system would be the last man standing – a single-payer system, which is of course the objective of socialized medicine. 

And we see what happens to quality of service in the countries that have socialized medicine, and how those who can afford to, come to America for the best treatment.  But that will become a thing of the past – Michael Moore may have his wish of care on par with Cuba.  Many doctors in the US even now are talking about getting out of the business, and no doubt many young people previously considering a medical career will have second thoughts.  This just as the demand is growing ever greater with the aging baby-boomers, and the new ranks of previously uninsured.  Already there was a front-page news story this week that there is a shortage of doctors in California.  But we sure have a surplus of lawyers – hmmm, there just might be a correlation there, with frivolous or excessive lawsuits against doctors, driving their insurance premiums up, their profits down, and motivating many to either move out of California or not move in.  Just as with the movie industry, etc., etc.

The Democrats say the mandate is necessary to eliminate freeloaders in the healthcare system.  Now they're suddenly concerned over freeloaders, after all the years of growth and fraud in the welfare and entitlement systems, food stamps recently burgeoning, and about half of the US paying no taxes whatever??!!  A disingenuous argument aimed at conservatives, but meant only to justify and subsidize their socialized medicine.

What Was Roberts Thinking?


The Roberts-Kennedy dosey-doe was strange --Kennedy being the more liberal or swing-voter on the court, and Roberts supposedly the conservative (selected by Bush).  There have been all kinds of theorizing and commentary on what got into Roberts to do this.  And many accusations of betraying his principles and being another turncoat appointee of a Republican president, like Souter.  And calls to be even more scrutinizing in the next appointment.

Charles Lang, a longtime watcher of Roberts even before his tenure on the Supreme Court, says he plays chess when everyone else is playing checkers, and conservatives should take a lot of heart – he sacrificed a pawn to put a greater check on entitlement expansion.  To which I say, that’s a pretty big pawn, and what if the elections don’t go well this November, and Obamacare becomes solidly entrenched and long-lasting, as the New Deal & Great Society legislation has?

A more prevalent theory among conservative talk show types is that he was concerned about the long-term image or respect for the court as a non-partisan dispenser of blind justice, which seems to fit the findings of something for everyone.  To which I say, truly blind justice won’t be concerned with such things, but strictly and objectively view the facts and law, which the 4 minority justices seem to have done more clearly.  You can’t always please everyone, and trying to will result in more problems than you’d solve by coming down more clearly on one side or the other.

Another troubling theory is that Roberts simply caved to liberal administration and media pressure, unwilling to overturn a major piece of legislation and exercise what the liberals would call “judicial activism.”  But what is the purpose of an independent court & judicial review if not to be a check and balance, no matter the size of the legislation – or perhaps more especially in the case of such a huge one?  There is some inside information (and evidence from the oral arguments) that Roberts changed his position, and towards the last minute – after much of the administration and media pressure was applied.  David Martin of the Media Research Center wrote, “A new shocking twist has come to light. CBS News is reporting that Chief Justice John Roberts may have been pressured by the elite liberal media to change his mind at the eleventh hour and join leftists to uphold Obamacare.  You read that correctly. John Roberts may have been so worried about what the elite media think of him, that he betrayed his conscience and voted to take away your liberty.  And this report isn’t based on idle speculation, but on high level sources within the Supreme Court itself.”

Certainly the contortion of considering the mandate as not a tax for purposes of the anti-injunction act, but as a tax, which is the only way it could constitutionally stand, seems a stretch to not overturn the key enabling provision of Obamacare.  As I’ve commented before, it is odd for liberals to use the “judicial activism” charge/threat, which they never have before, because it has generally if not always been used in the past with regard to liberal justices at various levels who legislate liberal causes from the bench.  Of course they think it’s fine for judicial activism to support their causes, but not conservative, or strict constructionist.  To them the constitution is just a fluid thing that goes with the flow, as apparently this Obamacare decision has.

Or, perhaps the Supreme Court justices simply relish their independence and unpredictability, and penchant to keep everyone guessing.  Certainly not a noble cause.

None of the foregoing reasons for Roberts’ decision seem valid.  Overturning Obamacare could have negated the liberal commerce clause interpretation, and the liberal interpretation of a tax as extending Congress’ power to mandate individuals and penalize states in noncompliance.  It could have avoided the further negative impacts on the economy of the uncertainty hanging over our heads.  .  It could have saved us months or years of further political divisiveness and struggle, including avoiding the diversionary Obamacare-Romneycare debate.  Unless Roberts or someone else comes up with some greater explanation for his chess move, it just appears to be a bad one – even master chess players make mistakes.  Rather than preserve the image and prestige of the court, it seems to have called into question its independence, wisdom and purpose.

The Immigration Ruling

The other significant ruling by the court, on the Arizona illegal immigration law, is no more satisfying.  Again something for everyone – and no one.  They ruled that local law enforcement can check on the immigration status of those suspected of being here illegally.  But they then have no power to do anything about it – to detain them (unless because of some other crime) or expect the federal government to take charge or deport them.  So what exactly is the purpose of checking their status?  Just out of curiosity, or to take a poll?  Is this a catch & release policy?  Do they really think that this in any way addresses the concerns and needs of those in Arizona on the front lines of the all the negative impacts of illegal immigration?  Again, a failing of logic.  Were they intimidated again by the liberal media and administration, throwing a token and meaningless bone to conservatives?

It’s Up to Us

At least all this has emphasized that, once again, our fate and power are in our own hands as a free electorate, not in the hands of unwise and unresponsive partisan administration and Congress, or an unwise and overly intimidatable judiciary.  Now more than ever is the time for those who care about the future of this great nation to rise up and say “no” to these diminishments of our nation, and to support and elect good, principled men who will reflect our will.  Men like Romney and conservative Senators and Representatives.  Let us speak with our wallets, our time and our voices, before it is soon too late to reverse course.  

Democrats think they are so clever, parroting Santorum that Romney’s not the one to attack Obamacare.  Just another diversion from the issue.  I don’t care who attacks Obamacare, or why, as long as he’s promised to kill it, which Romney has.  I don’t expect non-thinking or bigoted liberals or conservatives to understand the various significant differences between Obamacare and Romneycare, some of which I’ve enumerated earlier.  But hopefully they can understand the bottom line – if we help re-elect Obama through our own action or inaction, we will just get more of the same, which this nation can no longer afford.  Now is the time for every true American to come to the aid of his country.