Saturday, June 30, 2012

Justice Roberts' Decision: No Silver Linings

While the U.S. Supreme Court today found the individual mandate of the President’s health care plan unconstitutional under the commerce clause, and unconstitutional under the "necessary and proper" clause, the court has upheld the individual mandate and the rest of the health care law under Congress’ taxing power.

Some on the Right are deluding themselves, thinking that the restrictions of the commerce clause and the "necessary and proper" clause are silver linings to this very dark cloud. But they are not.
The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power (discussed below). The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program's expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts's opinion provides a constitutional road map for Leftist architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts's tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress's power to tax.
This is very disappointing. Ironically, both President Obama and Congressional Democrats told the American people that the individual mandate was *not* a tax. In September 2009, when George Stephanopoulos asked President Obama himself on ABC News whether the President rejects the notion that the individual mandate is a tax increase, the President responded: “I absolutely reject that notion.” So why would Justice Roberts try to save it?

Numerous lower court judges rejected the notion that the individual mandate was a tax. Chief Justice Roberts in his opinion today even admitted that, “[i]t is of course true that the Act describes [the individual mandate] as a 'penalty,' not a 'tax.'" In today’s dissenting opinion, Justices Scalia, Kennedy, Thomas and Alito stated that the language of the Affordable Care Act itself states verbatim that the individual mandate is a penalty.

“26 U. S. C. §5000A, entitled “Requirement to maintain mini­mum essential coverage.” It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential cover­age.” And the immediately fol­lowing provision states that, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a). . . there is hereby imposed . . . a penalty.“

Yet, the Supreme Court on a 5-4 decision ruled otherwise. The Court today has said that Congress effectively has unlimited authority to tax the American people. Above all, the Court has ratified a law that fundamentally alters the relationship between the federal government and the American people.

"If a Republican is elected president, he will have to be more careful than the last. When he asks nominees the usual question about justices they agree with, the better answer should once again be Scalia or Thomas or Alito, not Roberts."

Batten down the hatches. 20 Tax Hikes in Obamacare that are here now or soon to follow.

Thursday, June 28, 2012

SCOTUS decides its version of Obamacare (not the one Congress voted on) is constitutional

Today's Supreme Court ruling on the Patient Protection and Affordable Care Act (Obamacare) and its individual mandate is an interesting case of judicial activism. BTW, I am not opposed to the judicial branch being aggressive in overruling the political branches of government when what those branches are doing is unconstitutional. This whole idea of "deference to the elected branches" is nonsense. Either a law is constitutional as passed or it is not, regardless of how much the Congress or President like the law or how good their intentions are or whether they believe they are addressing some pressing need or whatever else. A court should be active in getting rid of unconstitutional laws, whether the left or the right likes them. What a court should not be active in doing is rewriting laws that were never voted on (and likely would not have made it through the political process). That appears to be what has happened in the Court's ruling on Obamacare.

The individual mandate was not said to be a tax when it was passed. The proponents didn't argue that it was a tax when they urged voting for it and the administration hasn't been arguing that it was a tax during its earlier legal challenges (with good reason, as it appears neither apportioned nor uniform). Is it "effectively" a tax in order to bolster its possible constitutionality? Why does the Court care? The Court's job is not to 1) contrive some hypothetical law that might constitutionally accomplish the stated aim of an actual unconstitutional law and then 2) rule as if the actual law were the hypothetical one. It's Congress' job to pass laws that meet constitutional muster and it's the Court's job but to toss out the laws that don't.

This is not a trivial issue because adding law-writing or law-rewriting to the portfolio of unelected justices is fundamentally undemocratic. Quite simply, it's not in the Court's mandate to rehabilitate the laws that fall short. Having Congress dodge political bullets by passing unconstitutional laws and sending them to the Court for constitutional editing without the need for a re-vote is a perversion of our legislative process. In this case, that perversion allowed Obamacare supporters to do an end-run around the thorny issue of needing to vote for a tax increase (on the mostly young and lower income folks who do not choose to buy insurance) as part of their bill - a bill which would not have passed the legislative gauntlet if what Roberts et alii now choose to interpret as a "tax" had been called that when the voting was done.

There is so much more to say on this decision, but I will limit my notes to a quicky pros and cons roundup:

BAD: Chief Justice Roberts has shown himself to be another wishy-washy Justice, willing to carry water for the explicitly political branches of government rather than adjudicating the constitutionality of the laws as they were passed.

GOOD: Justice Kennedy gets another item in his 'plus' column, which is good, even though his 'minus' column is pretty well-populated, too. Unfortunately, he wasn't the deciding vote on this case.

GOOD: The Court reasserted that there are some vague limits on the power granted by the Commerce Clause.

BAD: The Court nullified any practical value of those limits by adopting an incredibly liberal reading of the taxing authority. Under the current reading, Congress can effectively command any activity by sufficiently penalizing via "tax" the lack of that activity, as long as a thin veneer of revenue generation can be claimed.

GOOD: The political impact of this decision is likely to energize opponents of Obamacare and help steer the Fall 2012 elections in a direction that repeals the law. Assuming, of course, that President Obama is unable to capitalize on the fact that the GOP has chosen among its Presidential nominees the one with the least believable stand against government intrusion into health care.

BAD: Gone forever is any credible claim by RINO apologists that it is critical to vote for even weakly limited-government Republicans because that vote at least ensures steadfastly originalist judicial appointments. Then again, maybe ending that excuse for voting for bad candidates is not such a bad thing.

There is a long road ahead for Obamacare, even aside from the outcome of the 2012 Presidential race. It's probably too much to hope that California will be among the states that refuse to set up health insurance "exchanges". Keep in mind that the IRS has no authority to collect the $3000 employer penalty in states where federal (not state) exchanges are set up. But, many states are refusing to do so and even HHS Secretary Kathleen Sebelius has admitted there may be a need to set up federal exchanges for 15 to 30 states. In a time when businesses have ample reason to flee California, let's hope our state forces the federal government to bear the burden of these exchanges without further burdening our employers.

Tuesday, June 05, 2012

California Primary, June 5, 2012

For what it is worth, I give my $0.02 on the California June Primary and its initiatives.  I can't say I have much hope, for reasons I have outlined before.

Have you seen the sample ballot? What should be brief and concise, with only 2 Propositions and the usual local and state elections, is thick and rather convoluted. Whatever gains the Republicans could have made, with the new and less gerrymandered districts, have been squandered by this "jungle primary" system, which means the top two vote winners in each district face off in November, regardless of party.

PRESIDENT: Mitt Romney or a protest vote?

At this point, Mitt Romney is the nominee, and frankly, that's good to beat Obama, who has passed Jimmy Carter as most ineffectual President in my lifetime.

I know some of you are tempted to protest vote, because you think that Mitt Romney is a RINO (Republican In Name Only), who will cave us in and give us Obamunism Lite, and you want to send that message with your vote:

But before you protest vote, think about whether or not your protest vote will be properly understood by the GOP Ruling Establishment.
--Will a protest vote for Newt Gingrich, because you like his debating skill, intense ideas and intellect, be misinterpreted to mean that you really don't care about his lack of integrity, fidelity, ethics and honor?
--Will a protest vote for Rick Santorum, because you like his approach of Reaganite supply-side economics for the working class, be misinterpreted to mean that you are fanatical about the abortion issue?
--Will a protest vote for Ron Paul, because you like his sincerity about cutting an overly intrusive and monster government down to size, be misinterpreted to mean that you are isolationist, appeasing to foreign enemies, and even anti-Semitic?

SENATOR:  Elizabeth Emken, I guess. 

I am not exactly thrilled here, because Ms. Emken, like Carly Fiorina and Meg Whitman, appears to be another wealthy dilettante female (for some reason the GOP thinks only another female can defeat Senator Feinstein), who lacks actual California political experience, and will go down to defeat. However, no other Republican Senate Candidate in this jungle primary has the clout, or the organization, that Ms. Emken does.

Election after election, Californians get a choice between some outsider wealthy actor or billionaire CEO who thinks they can run themselves a tidy little state, and a mad Leftist. Billionaire CEOs seem to be attracted to the turnaround challenge while real Conservative principles and real hard knuckle California politics are annoyances they dance around. What we need is a GOP legislator who fought in the trenches and rose up through the legislature, regardless of gender, but alas, those lack the financial clout.

 Unfortunately, unless and until the California Republican Party can effectively harness the energy of the Tea Party Movement, it is doomed to failure and Dianne Feinstein will remain Senator until she passes away or retires. To her credit, Dianne Feinstein keeps her mouth shut and is *not* the horrid little harpy that Bolshevik Barbara Boxer is, but they vote the same way.

PROPOSITION 28: Term Limits Gimmick--NO

Proposition 28 will reduce the total time someone can stay in the state legislature from 14 years to 12. How does it do that? By "reducing" the time someone can stay in the State Senate from 8 years to 12. Or alternately, it "reduces" the time the assembly person can serve from 6 years to 12. In other words, by pretending to reduce total legislative office time someone can serve, it actually increases it in either house of the State Legislature. 

Frankly, I LIKE it that if an Assembly member is good enough at his job for six years then we can send him or her to State Senator for another eight. Or vice versa. And then he or she can go on to run for Executive Offices after that. Limits their terms, but gives them enough incentive to listen, maybe.

PROPOSITION 29: Yet another Government Research Program--NO

I know, I know, so many of you want more tobacco taxes because smokers are bad, Bad, BAD! and should be punished, Punished, PUNISHED!

But first, THINK. The state is as of now $14 *billion* in the red and has more programs than it can manage, and you want to create *yet another* government program?

If you really want to tax smoking because it is bad and should be punished, how about just having any and all revenue raised go into the General Fund, and not create yet another program / department / agency the state cannot afford?

I would like to see the last two smoking taxes applied in the same way. What we *really* need is a ballot initiative to defund and terminate the mandatory government programs set up by the two previous smoking tax initiatives, and take all of the tax revenues raised and apply them to the $14 billion dollar hole in the General Fund.

The anti-smoking ads that you regularly see, as a result of Proposition 99 (1988), are corporate welfare for admen on Wilshire Boulevard. The wise don't need them and the fools won't heed them. Put the money going to those ads back into the General Fund.

And what happens if you somehow do get everyone to kick the habit? Then that other smoking tax initiative, Proposition 10 (1998), which pays for children's development programs, goes begging to, you guessed it, the General Fund. So you had better *thank* the fools for smoking, because you will have to make up the difference if they don't. So you say that health costs are lowered if they all stop smoking? Not little kiddie health programs. The kids aren't smoking, or at least not yet they aren't.

But this is the unreality all too many duped Californians live in. As it stands, we have been duped into spending billions for a bogus "high-speed" (sic) rail program, which hardly anyone will realistically use, at a time when much of the aging 1950's vintage highway infrastructure needs repair. We have also been duped into spending a few billion dollars of taxpayer money on "Stem cell research" for nearly a decade now, with no results, at a time when the overcrowded public hospitals are stretched to their limits. (I could discuss the effect of indigent illegal aliens on our public health system, but I will leave that for another day).