Sunday, July 1, 2012

The Supreme Decision: Part One - The Politics

Note: This is the first part of my blog on the recent Supreme Court decision concerning the constitutionality of the Affordable Care Act. This portion reflects the news coverage of the event and the politics surrounding the decision. Facts about and quotes from the printed text of the decision itself will be offered in a later post.

Last month I blogged about the fundamental importance of the Supreme Court's decision about the constitutionality of the Affordable Care Act's individual mandate. The decision is central to over two centuries of political discourse regarding the limits of Federal Power and the rights of State Sovereignty.

This past Thursday the Court handed down a surprising and complex 5-4 ruling upholding the individual mandate as a tax. The mandate itself was ruled unconstitutional. Of course, this is tricky ground. Because the Court cannot rule on a tax that is not in effect yet. So, the majority opinion used some fancy legalese to get around that. Chink in the armor? I doubt it.

The decision was split along traditional, knee-jerk liberal-conservative lines. But, Chief Justice John Roberts, typically a conservative, voted with the Court's four more-liberal members. This upheld the general constitutionality of President Obama's signature domestic legislative accomplishment to date. The Chief Justice surprised almost everyone because usually Justice Anthony Kennedy serves as the "swing vote" on this Court. This time Justice Kennedy dissented and it was the Chief Justice, for the first time in his tenure, that made the liberal majority.

This was widely held as a victory for President Obama. I am not so sure. The best way to describe it would be to say that “Victory” is really “Victory*” – with an asterisk. That asterisk is the Ruling by Chief Justice Roberts. Legal scholars, who know a great deal more than I do about such things, were not surprised by the complex Roberts Ruling.

Roberts stitched together a majority by careful, moderate maneuvering.  In this way he crafted defineable majorities out of both the conservative wing and the liberal wing. By a 5-4 vote, the liberals agreed with Justice Roberts allowing the mandate, though they disagreed with him that it was only constitutional as a tax. The conservatives agreed with Justice Roberts in a 5-4 vote that the mandate itself was unconstitutional. That the Federal Authority could not trump State Sovereignty in the specific area of the Medicaid provisions of the Act was actually carried by a wider 7-2 vote. The decision was basically in these three parts. Otherwise, there was nothing stated about Obamacare.

It was a brilliant threading of a tactical needle, joining both sides of the Court in essentially separate but simultaneous 5-4 decisions.  Chief Justice Roberts deftly embraced his ordinary enemy. In doing so he accomplished several things. First, he secured the right to author the primary text of the landmark majority opinion. Though it is tempered somewhat by Justice Ruth Ginsberg’s opinion, Justice Roberts has Justice Ginsberg outvoted because her complaints are precisely where he stitches himself 5-4 with the conservative dissent. Therefore, it is the Roberts Ruling, not the Ginsberg concurrence, on the mandate that will become the opinion to which future Supreme Court cases will most likely refer.

Among the areas of the Roberts opinion that future court cases will use as Supreme Law are: The Federal Authority can regulate but it cannot create civilian behavior via mandate using the Commerce Clause. The Federal Authority cannot use funding as coercion upon the States to force compliance with a Federal Law. The Federal Authority cannot take Medicaid funding away from the States if the States freely opt-out of compliance with the Affordable Care Act.

Obviously with two interwoven 5-4 votes there was much dissent from both the liberal and conservative members of the Court regarding the Roberts Ruling.   Justice Ginsburg wrote the other majority opinion (assisted by Justice Sonia Sotomayor), mainly to criticize the Roberts mandate ruling. The third lengthy written opinion for this Ruling was the dissent co-authored by all four conservative justices in unison. The other two liberal justices only acknowledged support for or dissent against certain parts of the two majority opinions. Justice Clarence Thomas offered a separate, one-paragraph addendum to the general dissent, drawing attention to the “unprecedented” nature of the Government’s attempt to “regulate inactivity.” (emphasis is Thomas’)

Even though Obamacare “survived” the Court, it did so with a specifically restrained, not expanded, Federal Authority. The Roberts Ruling, coupled with the four dissenting justices, that the individual mandate is unconstitutional will have a lasting impact on future Supreme Court rulings. It was a victory for President Obama to the extent that the legislation may now move forward - albeit subject to further political efforts at repeal. It was a historic decision for State Sovereignty in that the power of the Federal Authority was expressly limited in terms of the constitutional nature of Federal mandates and the curbing of the ability to coerce the States into submission to Federal Authority.

At work on Friday, I stupidly got myself into a political argument over the Roberts Ruling with our ultra-conservative accounting manager and our support manager. These whiny conservatives sicken me. "Oh my god! The government can now tax anything they want! Why didn't they just strike the whole thing down?! Now we have to work and repeal it all through political process! That sucks because the liberals might win!"

Gag me with a spoon.

Our accounting manager says: "Name me one other thing that is taxed because it is not being done. They can tax anything. I am not as free as I was. I am being taxed for doing nothing. This is how freedom gets taken away. It happens in little steps."

The man is an idiot. But I merely debated with him for a half hour. I was not uncivil, the discussion was sprinkled with jokes, though I was passionate about my opinion. Here's why he is an idiot.

First of all, he interprets freedom as having a monetary basis. I actually had to remind him that “there is way more to human freedom than money and taxes.” Moreover, he does not understand that a tax exists within freedom; it can always be repealed by the voters, whereas a mandate is completely dictatorial - you must do such and such, we don’t care how you vote. I pity him because his material interpretation of freedom is fundamentally dehumanizing. There are people without money all over this world that are and express themselves to be free. If I went broke tomorrow I would still be a true free spirit.

As Roberts correctly understands, it would be catastrophic to freedom if the Federal Authority could mandate activity out of inactivity. Which is essentially what makes it unconstitutional. It violates the essence of the Founding Fathers idea of individual liberty.

Secondly, my accounting manager is an idiot because the Roberts Ruling will end up helping conservatives. Whiny neocons have no clue about the opportunity freely given to conservatives. They are too busy boo-hooing about the taxes to appreciate that the decision will likely limit Congressional Power.

The Roberts majority opinion is written so pro-conservatively that I became confused as I initially read the ruling. It seemed the Chief Justice was deciding oppositely from the way the news said he ruled. The first half of the six-page summary opinion is very negative toward the mandate. A lot of media guys got it wrong to begin with as well.  It seemed the mandate would be struck down.  Period.

When the news media correctly reported that Obamacare was ruled as constitutional by a 5-4 decision the reaction from conservatives was immediately and passionately negative. The decision was (and still is today) seen as a “disaster” that overreaches State Sovereignty.

This is a shallow interpretation, as I have already indicated, because this decision greatly preserves State Sovereignty. The Republican Attorney General for the State of Virginia understands this and I completely agree with him.

Of course, now conservatives are galvanized and this is precisely the nature of the gift of the Roberts Ruling. It preserves the freedom of dissent. There is no binding mandate, only a tax if you opt-out. The Republicans are completely free to repeal Obamacare. Nothing denies them this freedom, just as it does not deny the Democrats the freedom to secure this expansion of the welfare state. As messy as it seems, this is the way the Founding Fathers set things up. It is supposed to be messy. This is how the competitive freedom of political ideas works in a democracy.

So, I get frustrated with all the neocon whining about the vast expansion in Federal power to tax which, as I just explained, can be repealed by the voters if they freely choose in our democratic process. Yes, the liberals can win. The conservatives can also still win. A Mitt Romney presidency with Republican control of the House and the Senate is not an impossibility. It is, on the contrary, a genuinely free possibility, free to succeed or to fail.

Now that the constitutional question is addressed with a truly landmark decision, I can return and refocus to my original and long-time criticism of Obamacare as policy. It does nothing to address the cost of healthcare and, therefore, in the long run, it will drive costs even higher. Obamacare is about expansion of coverage not containment of costs.  There is no precedent in American history where flooding a marketplace with Federal money lowers the costs of anything. With healthcare in particular, it has only been because of Medicare and Medicaid that our health system has grown all out of proportion with the rest of the economy.  The cost goes up because the (Federal and private insurance) money is there to pay for it.

If we want to make healthcare affordable, the last thing we need is all the new money Obamacare will throw into the mix. Now, I will not vote for Romney and the neocon establishment in November. As I have always said, Mitt is a plastic, wax museum statue of a man. I cannot tolerate his brand of disingenuousness. But, Obamacare is enough to make me not vote for the President. I will likely vote Libertarian in 2012.

No matter how you feel about Obamacare as policy, however, Chief Justice Roberts has ruled that your belief about the policy is not a constitutional concern.

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