Thursday, June 28, 2012

Today's Obamacare Ruling

Today the Supreme Court ruled that the Patient Protection and Affordable Care Act, or Obamacare, was constitutional except for one aspect of the Medicaid expansion. Obviously I have to comment on this since the first post of this blog predicted they would rule it unconstitutional.

First the background:

In 2009 with the country in recession, Obama and the Democrats with their 60 vote supermajority in the Senate and control of the House and the executive branch, passed a massive stimulus bill. Then, claiming it was about the economy, they started trying to pass Obamacare. It ended up taking them months. Republicans were unanimous in opposition, steeled by the rise of the Tea Party. At first the Democrats wanted a public option, or publicly provided healthcare. They couldn't get it past a Republican filibuster in the Senate, so they settled for what they could get and managed, by promising millions of extra dollars of aid to Louisiana and Nebraska to get Mary Landrieu and Ben Nelson's votes, the current bill. Both conservative Democrats, Landrieu and Nelson hailed from red states and stood to lose a great deal politically for their vote. They were obviously looking for something they could use to prove to their constituency that the bill was good for them. Both failed miserably, as both the Louisiana Purchase and the Cornhusker Kickback were eliminated from the final version of the bill in a non-voting process called "reconciliation", but I'm getting ahead of myself. Nelson has since announced he will not run for reelection this year, a wise choice since he almost certainly would have lost by double digits despite his good reputation in my home state. I heard stories of Nelson being booed in public restaurants in Omaha. Nelson was a former governor of our state and I still believe he is a good man who got caught up in a moment that was obviously too big for him, much like Chief Justice John Roberts did today. I genuinely feel sorry for him, but he is the reason I will never vote Democrat again. Even conservatives can have their arms twisted by their party apparatus into doing the wrong thing. Landrieu is up for reelection in 2014.

After getting 60 votes in the Senate to override a filibuster, the Democrats thought they had it made. For those of you unfamiliar with how Congress works, there are two houses: the House and the Senate. Both houses had now passed two different versions of Obamacare. In order for the bill to become law, a committee has to meet to hash out the differences and get the same bill passed in both houses. Normally each house passes a different bill and then the final version is a compromise between the two houses. Of course, this compromise bill must also be passed by both houses. The first vote is usually just the opening statement of a longer argument. Not this time. 

Fueled by the Tea Party angst over the stimulus and Obamacare, in no less than the original home of the Boston Tea Party, the state of Massachusetts, Scott Brown, a Republican in a deep blue state, won the special election for the Senate seat vacated by the death of longtime Senator and socialized medicine advocate Ted Kennedy. Brown was famous for criss-crossing the state alone in his personal pick-up truck during the campaign. His opponent was famous for campaigning for "Kennedy's seat" claiming a win was needed to honor his memory. Brown simply replied, "That seat belongs to the people of Massachusetts." Brown won, and now the Democrats had only 59 votes in the Senate. They could no longer run roughshod over Republican opposition and were stuck right in the middle of negotiating a compromise between the House and Senate versions of the bill. Since Republicans in the Senate were united against Obamacare and would filibuster any attempt to push through another version of the bill, the Democrats had to strong-arm the House into accepting the Senate version of the bill which was never intended to be final. Just to clarify, the strong-arming was required because Democrats in the House wanted a more socialist bill then the Senate version. All of these so-called "negotiations" were completely within the Democratic Party. No Republicans were invited and no Republicans were interested. Due to the strong leadership and exceptional argumentation provided by Speaker of the House Nancy Pelosi, who argued that "we have to pass the bill so you can find out what's in it," they barely succeeded with a vote of 219-212, despite Democrats having around an 80 vote advantage in the House. One wonders if Pelosi's argument didn't ring true with many of the House members whilst staring at the 2700 page monstrosity being sold to them, four orders of magnitude larger than the Constitution itself. 

Now they had a bill which could be sent to the President to sign, but unfortunately it was a bill which was never intended to be the final version, and they were stuck with it. So they decided to use a tactic called "reconciliation" to modify the bill without a vote to, in effect, make it presentable, like a make-up job two minutes before airtime. During this process, both the Louisiana Purchase and the Cornhusker Kickback were removed due to popular outcry, also removing the main reasons the Senate bill got 60 votes in the first place. I remember when Republicans merely threatened to do something similar during the Bush years. The media nicknamed it "the nuclear option" and began a full-fledged crusade against it. Republicans backed down. When Democrats actually do it, without even so much as a threat, suddenly it's called "reconciliation." But conservatives are used to media bias, so this passed relatively unnoticed. The modified but still raw and unfinished bill was signed into law by President Obama on March 23rd, 2010. In November of that year, once again fueled by Tea Party opposition primarily to Obamacare, Republicans won a landslide victory in both the House and Senate, gaining 63 seats in the House and six in the Senate, giving us our current Congress. Since its inception until this day, Obamacare has been so unpopular the law never would have garnered even a majority of the voting public. 

Now the resistance began in earnest. Twenty-six state governments and the National Federation of Independent Businesses signed on to a lawsuit against it, with a twenty-seventh state, Virginia, filing one on its own. Twelve lawsuits were filed by forty-three Catholic institutions, including Notre Dame University, just a few months ago after it became clear that the Obama administration intended to use the law to force Catholic institutions to provide healthcare coverage for contraception and even abortion in violation of their religious liberty. Innumerable other lawsuits are in the works, and Obamacare will not even be fully implemented until 2014, when even more lawsuits will come into play as certain legalities don't allow suits to be brought until some consequences of the law are actually felt. The ruling issued today was over the first lawsuit. 

The ruling today is surprising not only because it upheld an unconstitutional law, but also for the reason it was upheld and who voted in favor of it. Those who follow the Supreme Court know that in recent years it has been divided evenly between four constructivist justices, Scalia, Thomas, Alito and Roberts, and four, shall we say, "living document" justices, Ginsburg, Breyer, Sotomayor and Kagan, with Justice Anthony Kennedy usually providing the swing vote. Kennedy has recently voted with the constructivists more often than not, a position which chooses to validate and uphold the original meaning of the Constitution. Most expected the decision to be 5-4 with Kennedy being the deciding vote. Oral arguments before the Court did not go well for the government, and many conservatives believed at least the individual mandate would be held unconstitutional. Kennedy did vote against the law, but Chief Justice John Roberts voted with the liberals to uphold it. The decision was 5-4 in favor. 

Even more surprising is the reasoning behind Roberts' vote. Obviously something spectacular would have to happen for a Justice to vote for a law he almost certainly disagrees with. The first argument for Obamacare's constitutionality and the one most favored by liberals was based on the Commerce Clause. The government, according to the Constitution, has the power to regulate interstate commerce. This clause has long been abused by progressives. Perhaps the most egregious example is Wickard v. Filburn, the 1942 case which ruled a private farmer could not grow wheat for his own private consumption if the government chose to restrict him. In other words no commerce whatsoever was taking place, much less interstate, yet this poor farmer could still be regulated under the Commerce Clause because by growing his own wheat he took himself out of the wheat market, affecting interstate wheat prices. Apparently even subsistence farming can be regulated by the government according to this bastardized interpretation of the Commerce Clause. And remember this was in an age where the government had on occasion ordered farmers to deliberately destroy their own crops and paid them not to grow crops in the first place in an attempt to engineer food prices, leading directly to food shortages and bread lines. No wonder today's progressives thought the Commerce Clause was their strongest argument for Obamacare. The progressives of yesteryear had literally used it to force the American people to starve. But Roberts categorically rejected this argument. 

The argument he accepted was that the individual mandate was not in fact a mandate at all. Despite numerous citations in the dissenting opinion proving it was intended as a penalty for breaking the law, including an unequivocal insistence on that point by President Obama himself, Roberts ruled that the mandate was not really a legal requirement but that the penalty for breaking it was actually just a tax, falling under Congress' power to tax. In fact, the Supreme Court had earlier ruled the individual mandate was not a tax because if it was according to the Anti-Injunction Act they could not have decided the case over the individual mandate until someone had actually paid it, which no one will until 2014. Unbelievable! The Democrats had long insisted the law was not a tax for obvious political reasons and the Supreme Court had previously ruled it was not a tax in order to hear the case now, yet all of a sudden the individual mandate is ruled constitutional because it is a tax!

I would like to believe that we will reach no lower Orwellian depths, but if we accept this ridiculousness what won't we accept? There is really no explanation for Roberts' decision other than that offered by Charles Krauthammer. Conservative jurisprudence is against judicial activism, meaning conservative justices do not believe the Supreme Court should make law, which of course I agree. Roberts, apparently, believed he had a duty to make sure the Supreme Court was not where the issue was decided. With this I do not agree. The job of the Supreme Court is to interpret the law without any reference to political concerns. If this was Roberts' motivation, then he clearly had a political concern, and in fact did the opposite of whatever principles he thought he was following. 

Well Mr. Roberts, sir, the people have already spoken loud and clear. If you thought you were appeasing them you were greatly mistaken. The legislative process was abused in passing the law in the first place, and even then it only passed by the skin of its teeth. Obamacare was opposed in Massachussetts, the very state where then governor and now Republican presidential nominee Mitt Romney had signed into law something very similar. They elected Scott Brown with the express purpose of stopping Obamacare. It passed anyway on the strength of provisions used to secure votes that were taken out of the final version without a vote. It has been opposed by a majority of the American people ever since its inception, and its only getting worse. After your ruling today and after inexplicably running against something he was for as governor of Massachussetts, Romney raised $3.2 million in less than one day. His campaign has suddenly transformed from being about the economy to being about repealing Obamacare. Do you hear that? This law is so odious that people care about getting rid of it more than the worst economic problems this country has faced since the Great Depression, another gift from progressives. The least you could have done was rule according to your principles without reference to any political concerns. Votes can change. Supreme Court precedents cannot. You, sir, have damaged what you sought to repair and uphold by issuing a precedent which will now be cited by every last progressive attempting to abuse, distort and destroy principled and majority opposition to his political initiatives. I hope you're happy. The people are not.

Now that's whack.