Some Thoughts on Chief Justice Roberts and the Supreme Court's ObamaCare Ruling

One of the most significant news stories of the year occurred on June 28, when the U.S. Supreme Court ruled to uphold ObamaCare as constitutional by 5-4.  Unfortunately, it happened one day before I left on a vacation for more than two weeks without Internet access, so I didn't have the chance to comment on it at the time.  This week, a friend sent me a column from a Florida newspaper by Jack Tymann entitled "Chief Justice John Roberts - Brilliant" and asked for my thoughts about it.  Not surprisingly, I ended up writing him a long response which I have decided to post on the blog as well.

I strongly disagree with most of what Tymann wrote.  The one thing I agree on (other than obviously agreeing that it was a good thing the Supremes denied the feds the right to pull the states' Medicaid funding over failing to participate in ObamaCare) is that the ruling has the potential to help Romney in the presidential race, because it gives him the opportunity to point out that Obama was responsible for one of the most massive tax increases ever, according to the Supreme Court ruling.  And obviously, I strongly want Romney to win.  But not at the expense of the Constitution.

The author is claiming this was some kind of brilliant political calculation on the part of Justice Roberts.  Well, I say that it is not the job of Supreme Court justices to make political calculations.  Their job is to interpret the laws in accordance with the Constitution and leave the political calculations to the politicians.  ObamaCare is a truly awful law that violates the Constitution.  It forces people to purchase a product (government-approved health insurance) by means of a coercive penalty enforced by the IRS.  There is no way that can be squared with the individual liberty and strictly limited government guaranteed by the Constitution.  The individual mandate was not designed as a tax, but as a penalty.  Obama and the Democrats explicitly declared it was not a tax.  How can someone be taxed for not doing something?  People are taxed for buying something, or owning something, or earning something.  You cannot be taxed for an absence of activity.  That is utter nonsense.

I think Roberts knew full well that both based on the language and intention of the law and based on the nature of the mandate, ObamaCare was not a tax.  But he wanted to uphold the law to "preserve the reputation of the court" and avoid a decision that seemed politicized in an election year.  Maybe he was hoping Obama would stop attacking the Court.  So he decided to literally change the law and twist logic beyond recognition to turn the mandate into a tax.  This explains perhaps why he initially sided with the four conservative justices in striking down the law, but later changed his mind.  He thought he had found a clever way out that would enable him to avoid striking down the law while at the same time making it easier politically to overturn the law. 

I think Roberts is very far from a hero.  I think he's a pathetic squish who sold out his principles and the Constitution in order to avoid criticism and appear "bi-partisan."  There is no way this law can be squared with our Constitutional freedoms.  If government can compel us to buy a product of their choosing, there is no limit to what they can compel us to do.  It doesn't matter what Constitutional clause they use to justify it.  So what if Roberts said ObamaCare was unconstitutional under the Commerce Clause?  What does that matter if it's constitutional under government's power of taxation?  The power to tax can be made just as unlimited as the power of regulating commerce.  I like how Fred Thompson described this decision as "a result in search of a rationale."

What is truly scary is that this decision removes the best hope that this terrible law will be repealed and our country will be saved from socialized medicine.  I think the likelihood that this law will be overturned legislatively is not great.  First of all, Romney must win the election, which is far from certain.  Secondly, the Republicans must take control of the Senate, which is also far from certain.  Third, even if Republicans gain the majority in the Senate they will have to contend with the filibuster, which may make it difficult or even impossible to permanently repeal the law, at least right away.  Fourth, we have to assume that Romney and enough Republicans in Congress will stick by their principles and do what they say they will do rather than giving in to pressure from the media and the left or being fooled into some kind of a bogus compromise.  All these things must happen and happen quickly after the election, because ObamaCare takes effect fully next year and once it takes effect it will probably never be undone.  It would have been much easier if Roberts had just followed the Constitution and repealed the law, instead of playing his little political games.  So yes, I am far less optimistic than this author, and I think conservatives are deluding themselves if they think this is a victory for limited government and the Constitution.

The Obamacare case ruling

is expected around 10am.  I'm hitting refresh every few minutes.  I hope it comes through before I have to leave the house...

A little bit of a sick feeling.  We shall see...

Obama's Thug Politics

Michael Barone has a great column out today about the Obama Administration's disgraceful bullying tactics against the health care industry. Health and Human Services Secretary Kathleen Sebelius recently wrote a letter to the president of the chief lobbying organization for private health insurers, telling her that "there will be zero tolerance for this type of misinformation and unjustified rate increases." It seems that health insurance companies are raising their premiums significantly in response to ObamaCare, which imposes significant new costs and regulations on them. If anyone on Obama's team knew anything about how a free market economy works, they would be aware that forcing health insurers to provide more benefits leads to additional costs, which these insurers will pass on to consumers in order to stay profitable. Opponents of ObamaCare pointed out that this would be the inevitable result of the Democratic legislation for a year now. However, according to Sebelius, such premium increases are unacceptable because "according to our analysis and those of some industry and academic experts, any potential premium impact...will be minimal." Never mind basic economic principles -- the government has authoritatively declared that your costs will not go up!

So what exactly does "zero tolerance" mean? (Have you heard Obama's Administration use those words about Iran or Hamas or Hugo Chavez lately? Funny how American health insurers get less benefit of the doubt than Islamic terrorists and hostile foreign governments.) Well, Sebelius explains herself. She says that her department will issue regulations to force a "state or federal review of all potentially unreasonable rate increases." (That word "potentially" really narrows down the field!) And adds, "We will also keep track of insurers with a record of unjustified rate increases: those plans may be excluded from health insurance Exchanges in 2014."

Let's put Sebelius's Soviet-style approach in ordinary English. Here's what she's really saying: "We control health care in this country now. We determine who gets to participate in the health insurance market and who doesn't, and if you don't set the premiums we tell you to set, we will put you out of business. We know that raising premiums and telling consumers why you are raising those premiums is not against the law -- nevertheless we have a 'zero tolerance' policy for dissent or criticism of our legislation. We will let you know when the First Amendment applies and when it doesn't. Ground Zero Mosque - yes. Criticizing ObamaCare - no."

As Barone points out, "The threat to use government regulation to destroy or harm a business because the owners disagree with government officials is thuggery." Of course, this is the same administration that forced GM and Chrysler to reorganize outside of the normal rules of bankruptcy to protect their union allies, and the same administration that tried to bully Fox News by singling them out for exclusion from an interview with a Cabinet official. They are hungry for control -- of the media, the automakers, the financial services industry, the health insurance industry, the energy industry, etc. Control means the right to bully and intimidate people and companies into doing what you want. The Soviets would have been proud.

It's telling that while Sebelius is attempting to silence health insurers who are criticizing the health care bill, not a SINGLE Democratic congressman or senator in a competitive race is bragging about voting for the health care bill. According to Barone, no Democrat running for Congress has even praised or defended the bill since April. They wouldn't be running from it if they didn't know it was an utter failure. But if you're a health insurer, you'd better keep your mouth shut. Or else.

Twenty-five year olds "allowed" to stay on parent's health insurance plans

By now, this is old news. One consequence of the recently-passed health care "reform" bill is that the compassionate and benevolent people in the federal government are going to "allow" "children" to stay on their parents' health insurance plans until the age of 26. Think about this for just a minute.

It is not necessary to have a law to allow you to do something! To the best of my knowledge, there is no reason why insurance companies could not have sold policies which would cover the little basement-dwellers. (I suppose there could be some government regulation to prohibit this. The insurance industry is highly regulated, and I am no expert.) What doubletalkers like Obama really mean when they say that 25-year-olds are "allowed" to remain on their parents' insurance plans is that insurance companies are forced to sell insurance plans which cover "adult children" up to the age of 26. Once again, our politicians have inserted themselves into our private matters in the name of "compassion". (And no doubt, they will take credit for it, even though they have done nothing other than tell somebody else what to do.)

Hope and Change Is Code for Threats and Intimidation

Check out this article in the Washington Examiner. As I noted in an earlier post, numerous large American corporations have announced in the last few days that ObamaCare is going to significantly raise their costs to provide prescription drug coverage for former employees, possibly resulting in loss of benefits. Obviously, this doesn't quite fit with the Democrats' preferred narrative about their health care bill, so they've decided to fix the problem by hauling those companies' executives before a congressional committee and demanding they release all internal documents relating to the impact of the health care bill on their costs. The goal is to intimidate these companies into keeping silent about ObamaCare and to discourage other companies from saying anything critical about ObamaCare in the future. The Democrats are using the full powers of government to force private companies and citizens to keep their mouths shut, Soviet style. OK, maybe not quite Soviet style yet. But definitely Chicago thug-style. These companies are now between a rock and a hard place. By failing to disclose changes that could have a negative impact on their bottom line, they open themselves up to investigation, penalties, and prosecution by the SEC. By disclosing those changes, which happens to reflect poorly on the Democrats' health care legislation, they open themselves up to a partisan witch-hunt by our esteemed Democratic Congress. And we wonder why American companies aren't hiring....

This Should Help Unemployment

Here's an excerpt from a post on the National Review blog Campaign Spot:

Farm-equipment manufacturer John Deere "said it expects its expenses to rise by around $150 million on an after-tax basis, mainly in the second quarter, as a result of the legislation."

Verizon "told employees in an email Tuesday that Verizon's costs will go up in the near term, pinpointing a tax-subsidy reduction for retiree health benefits."

Heavy-equipment manufacturer Caterpillar "said that its first-quarter earnings will be hit with a $100 million after-tax charge under tax law changes attached to the new health care reform legislation."

AK Steele Holding Corp., "the third largest U.S. steelmaker by sales, said it will record a non-cash charge of about $31 million resulting from the health-care overhaul signed into law by President Barack Obama. The charge will be recorded in the first quarter of 2010."

Valero Energy "will take a $15 million to $20 million charge to second-quarter earnings for the same reason."

Medical-device maker Medtronic "warned that new taxes on its products could force it to lay off a thousand workers."

If you want to reduce unemployment, stop passing legislation that kicks the snot out of employers.