Two days ago the Supreme Court handed
down an opinion on what is likely the biggest and most controversial case of my
lifetime thus far: NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS,
SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. (More reasonably known as the Obamacare case.) I along with many
political observers assumed the swing vote would rest with Justice Kennedy, who
is generally considered a wild card when it comes to voting. Most also assumed
that Kennedy would vote with the conservatives and the law would be overturned
in a 5-4 decision. Instead Chief Justice Roberts voted with the liberals on the
court to uphold the bill in its entirety. At first I couldn’t understand why in
the world Roberts would uphold this law, after all Roberts is a conservative!
But as I read his opinion, I realized his stance simply made sense. So let us
dig into what his opinion says and what it means for our nation going forward.
As we neared
decision day, both sides of the political spectrum wanted the Supremes to
validate their position on the bill. If it was upheld, then Democrats would be
able to say, “It was a good law, the Republicans should stop trying to get in
the way of a much needed fix of the healthcare system, and the Supreme Court
agreed with us!” If it were overturned then Republicans would be justified in
their opposition. It would allow them to say, “Obamacare was obviously a huge
mistake, it wouldn’t have fixed anything, and the Supreme Court agreed with
us!” Heck, a few days before the decision was handed down, the Republican
Speaker of the House felt the need to warn Republicans not to gloat and “spike
the football” if Obamacare was overturned! In the minds of the right and the
left, the Supreme Court would decide if Obamacare was a good law or a bad law.
Roberts simply refused to play that game.
Roberts instead
chose to remind us that the Court doesn’t decide the merits of the law but the
constitutionality of a law. A law can be good and unconstitutional or bad and
constitutional. In this case Roberts looked at the law and declared it bad and
constitutional. To quote Roberts in his majority opinion,
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
That’s Seperation of Powers 101.
Congress legislates laws, the President enforces the laws, and the Supreme
Court rules on the constitutionality of the laws. A law could seem to be the
most noble and righteous law ever, but if it oversteps its boundaries and
infringes on our rights and freedoms it must be denied. For anything that
limits our rights is inherently ignoble, despite its aims.
So what did Roberts do?
If you’ve been following the case since
the oral arguments were presented a few months ago, you know that Roberts
didn’t accept the federal government’s argument for the constitutionality of
the individual mandate. Obama’s administration argued that Congress had
authority under the Commerce Clause. Without going into too much detail, the
Commerce Clause gives the Federal Government the power to regulate any business
that occurs between states. For example, the government can control how much
corn farmers in Indiana can produce because they ship the corn to other states.
Obama’s team argued that they could use the Commerce Clause to compel people to
buy health insurance because by not purchasing healthcare, they are hurting the
economy. Roberts said not so fast fella’. The government can’t be allowed to
interpret a choice to not purchase something as a chance to tell the individual
to purchase something. Roberts suggested that would give Congress way too much
power. For example, the government could decide that everyone must purchase a
car or else face a penalty. You may say that you don’t need a car, but that
won’t matter. You must act for the good of the economy. To again quote Roberts,
“The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. 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. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.”
Roberts
has now set up a precedent that Congress cannot compel individuals to purchase
something that they have decided not to purchase. It’s not a crime to not buy
something. And all the lovers of freedom rejoiced.
Roberts
instead viewed the individual mandate as a tax. Basically, the Federal
Government has placed a tax on not owning healthcare. It is collected by the
IRS and is much cheaper than actually paying for healthcare. The government is
trying to affect behavior by taxing what it doesn’t want you to do. Roberts
therefore doesn’t see this as compelling action. (That’s a problem for the
individual mandate. If enough healthy people pay the tax instead of buying
healthcare, then there won’t be enough money in the system to pay for all of
the people with pre-existing medical problems who now can’t be denied
healthcare, causing premiums to rise ever higher.) Again, nudging people to
change their behavior through taxation isn’t necessarily a good idea, but it is
constitutional.
I
have problems with Obamacare. I don’t think it will succeed in making healthcare
more affordable. As I mentioned above it’s still going to be cheaper to pay the
tax than it is to pay for healthcare. This sinks the law by itself. A big part
of Obamacare was to prevent insurance companies from dropping or refusing to
help expensive patients. Obamacare accomplished that by making it illegal to
deny care to people with a preexisting condition. The individual mandate would
then compel healthy people to buy insurance and subsidize the expensive people
with a preexisting condition. If healthy people don’t buy healthcare, then
insurance companies are just stuck with sick people they can’t turn away. Providing
health insurance is very expensive if only sick people are being covered. As long
as it is cheaper and easier for people to avoid paying for health insurance,
they will avoid doing it. Further Obamacare as now created several new taxes to
convince your employer to provide insurance for you, which will increase the
cost of doing business. Either they pay for your insurance or they pay the tax.
Either way, businesses now have to pay more to stay in business.
I
also think this ruling will increase the pressure on Obama during this
election. He now must contend with accurate accusations that this law is a tax
on Americans. This becomes an even bigger problem since he campaigned for this
law specifically promising that it wasn’t a tax. Also it has energized the
Republican base. Between the release of the Supreme Court’s opinion and this
writing, Romney has raised 5.5 million dollars from more than 47,000 individual
contributors.
In
short, yesterday the Supreme Court carved out a huge restraint on Congress’
ability to use the Commerce Clause, upheld the importance of separation of
powers, and declared the individual mandate a tax. They let a bad law go
through, but it’s not their job to deal with bad laws. It’s the job of the
American people and Congress to deal with bad laws, which is exactly what they
should do.
As always, tell me what you think. I invite you to read a summary of the decision here: http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf
Thank you for taking the time to read this even though its been ages since my last post.
Proverbs 14:15
Tyler Holmes
