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.

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