Monday, July 2, 2012

A Clearly-Written Supreme Court Decision for the Ages?

The Supreme Court ruling on Obamacare did not go the way many people had hoped.

'Many people' who did not support President Obama in 2008, that is.  As well as many who did, mostly the critical Independents.

We get that.  We share a lot of the same concerns about the massive expansion of more federal programs and spending at the very same time we are trying to arrest this $16 trillion national debt that is still growing with no moderation in sight.

Advocates say Obamacare has 'plenty' of mechanisms in them that will arrest the upwards spiral of federal spending in Medicare and Medicaid and health care in general.

We have seen scads (all of them) of 'new' health care and entitlement legislation (federal mandates) pass Congress over these past 30 years. To our knowledge, not one of them has wound up saving tremendous amounts of money (any) and most (all) of them wound up costing multiples of the original CBO estimates within 10 years.

To any advocate of Obamacare, we issue this challenge:
'We will buy you an unhealthy steak dinner at the most expensive restaurant in town if and when Obamacare actually does start saving the American taxpayers any money at all.  Even a smidgen below what is expected to cost in current baselines.

Because it will be the first and only time in the last 30 years where medical inflation has started to 'bend' downwards.'
We don't believe health care inflation will abate because of this bill.  Maybe when and if everyone loses 25 pounds, starts exercising 1 hour per day, stops over-drinking, over-eating and smoking, it will happen...but this bill won't cause that to happen either.

We strongly suggest, however, that before you jump off the ledge or drink hemlock this Fourth of July week, you try to read the Supreme Court decision in its entirety.  Here it is, all ready for you to click on and download and read to your heart's content: SCOTUS on Obama Health Care.

This is NOT your normal boring and obtuse SCOTUS ruling.  This is more on the order of Warren Buffett's Berkshire Hathaway's annual report which is perhaps the most enjoyable and easy to read of any corporate annual reports simply because it combines facts and figures with humor, clear writing and history.

Same with this ruling.  Chief Justice Roberts wrote this decision as part-judicial review but mostly a review of American democratic republicanism and federalism in a way that most citizens can mostly understand and follow.

You'll find references not only to previous Court rulings (bor-ing) but to the Constitution itself (amazing); The Federalist Papers themselves (which shows original intent on the part of the Founders in 1787); witty Ben Franklin letters and even a reference to the obscure but important James Madison document 'Vices on the Political System in America' that he used to write the Constitution in 1787 in Justice Ginsberg's dissent on one issue

This is a veritable feast of American history and 'judicial review' not only of the legal precedent heading to this decision but of our entire political philosophy in this country.  As a result, we think it is a very important document for you to read and digest over the coming 4th of July break.

The decision may not have been what you wanted.  We have no idea why Chief Justice Roberts couldn't have written the same thing in a majority decision that uprooted the individual mandate instead of confirming it after he bought the tax argument after dumping the 'penalty' argument under the Commerce Clause.

But, for the moment at least, forget the final ruling and take a gander at just some of the paragraphs and phrases Chief Justice Roberts penned on behalf of himself and the 4 liberal Justices, all of whom have now set a precedent for future Courts to follow and future Congresses to be wary of crossing with future legislation.

Our guess is that this is the last time that Congress will be able to pass a bill with increased revenues and not clearly identify them as 'taxes'. In which case, the hurdle to passage has just gone from the low hurdles in high school track to the Olympic high jump.

Obamacare would not have passed even a Democratic Congress had these increased 'penalties' been classified as a 'tax' as the Supreme Court just clearly tagged them.  They tried and couldn't. The political headwinds against any new higher taxes is just too high in America today.

Had this not been in such a high-profile and controversial case, the following paragraphs would have been saluted by conservatives across the land as the most momentous decision in the past 30-40 years on the high Court.

Maybe it will take awhile to sink in.

Regarding the Commerce Clause:

'Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do.

Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing.

They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers.

The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.'

Regarding the Necessary and Proper Clause:

'Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms.

Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. e.g., United States v. Comstock, 560

The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it.

Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective. Pp. 27–30.'

Direct Taxation Clause:

'Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4.

A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents. It therefore need not be apportioned so that each State pays in proportion to its population. Pp. 40–41.'

(Some people, including us, thought this might have upended the mandate)


Spending Clause:

'The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, §8, cl. 1.

Congress may use this power to establish state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman,451 U. S. 1, 17.

“[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States,505 U. S. 144, 178.

When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. Cf. South Dakota v.Dole, 483 U. S. 203, 211. Pp. 45–51.

Mandatory Compliance of States with New Medicaid Entitlement Expansions 

'Section 1396c (of the PPACA) gives the Secretary of Health and Human Services the authority to penalize States that choose not to participate in the Medicaid expansion by taking away their existing Medicaid funding 42 U. S. C. §1396c.

The threatened loss of over 10 percent of a State’s overall budget is 'economic dragooning' (parentheses ours, one of the greatest descriptions of over-reaching concentrated government power ever) that leaves the States with no real option but to acquiesce in the Medicaid expansion.

The Government claims that the expansion is properly viewed as only a modification of the existing program, and that this modification is permissible because Congress reserved the “right to alter, amend, or repeal any provision” of Medicaid. §1304.

The expansion accomplishes a shift in kind, not merely degree.

On the Power of Congress to Lay Duties and Collect Taxes

'From its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) “Our new Constitution is now established . . . but in this world nothing can be said to be certain, except death and taxes” P.42

We are no expert when it comes to reading important Supreme Court decisions.

But when was that last time you read anything from a lawyer or a court decision with such clear, succinct language and a reference to one of Benjamin Franklin's greatest quotes ever?

Never we would suppose.

So grab a beer in this hot weather, sit by a cool pool or at the beach and read this thing. You will be glad you did.

The American Republic is not going to fail over this one Supreme Court decision.

We, as a nation, have been through a Revolution and a Civil War and our grandparents and parents have been through WWI and then The Biggest and Worst Depression Ever only to then have to serve in WWII, the greatest and bloodiest war in history as a booby prize.

How they did both, survive the Depression and World War II, we will never fully understand or appreciate.

We, the living generation of Americans, aside from the brave souls who have served in Vietnam, Iraq or Afghanistan, have had it pretty easy by comparison, you gotta admit, despite the last 4 years of this on-going not-so-great economy.

In fact, our parents and grandparents had already defeated Hitler and Nazi Germany, Emperor Hirohito and Imperial Japan, freed France, Italy and the rest of Western Europe, North Africa and Asia in about the same amount of time as we have been bitching and moaning about this 'wretched' economic situation and this Presidential Administration and Congress.

4 years for both. Our bitching and their fighting. How much longer are we going to keep 'bitching' and not doing?

We have to face up to the facts that if you don't like this decision, you are just going to have to do what 69 million Americans did in 2008 when they elected Barack Obama President over John McCain and 8 years of George W. Bush: work just as hard to elect a new president in November.

It ain't easy. It means you have to empty your pockets and pay the piper when it comes to financing campaigns of people you want to win.

Two of the most important Patriots in the Revolution were wealthy businessmen and financiers Governeur Morris and Robert Morris of Pennsylvania. Without them guaranteeing loans to pay the soldiers and buy munitions when asked to do so by George Washington, the War Against Great Britain would have been lost about 1778 or so and not won in 1781 at Yorktown.

If you want to see which of your friends and fellow patriots have stepped up to the plate and done so, and who are the clangy gongs who have not, go to this wonderful website www.fec.gov and type in a few names in the 'individual contributions' drop-down menu.

If you are on that list, you have already put your money where your mouth is, at the federal level at least.

So congratulations, regardless of which side of the political spectrum you find yourself on. You are a 'player', not a spectator.

And if you haven't, well, take out your star-spangled checkbook right now and write a check to Mitt Romney's campaign or any of your favorite congressional or senatorial campaign and put it in the mail today.

Or charge it to your credit card on-line on the 4th of July. You'll feel like a real Patriot then.

But this is what American democratic republicanism is all about. Running for office as a citizen-politician first. Voting, organizing, going door-to-door and contributing money a close runner-up.

Chief Justice Roberts has just written a US Supreme Court majority decision to remind us of the sacred duty we all have as citizens to participate fully in the electoral process of America.

So just. do. it. Just like the Nike ad used to say.

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