Today, I’ll share my impressions of the recent Supreme Court decision regarding the fate of ObamaCare. First and foremost, I want to emphasize: this is yet another 5-4 decision issuing from the High Court. I’ll have more to say on that toward the end, but to start: Herein, I will refer to the law in question as “ObamaCare,” rather than by its proper name – the Patient Protection and Affordable Care Act. All occurrences of the word “ObamaCare” (below) are due to my insertion.
The Supreme Court’s ruling – all 193 pages of it – can be found here: http://www.supremecourt.gov/ .
Once you click the link, you’ll find yourself on the US Supreme Court’s home page. On the right-hand side of this page, you’ll see a column entitled, “Recent Decisions” on which there are links to three cases dated 6/28/12. The one regarding ObamaCare is listed as “National Federation of Independent Business v. Sebelius.”
On with the Show
I say “On with the Show” to indicate my view: An appreciable amount of what comes from the Supreme Court is for appearance sake, sometimes becoming nothing more than an embarrassing juggling act of words. The decision on ObamaCare satisfies this description. Near the very top of the home page we have this:
QUOTE:
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader….
:UNQUOTE.
Even though the syllabus doesn’t claim to be the wording of the Court, in this case I will accept that it’s close enough. The material quoted below comes from that syllabus. However, I did scroll down to check the actual text of the Court’s decision to verify the accuracy of the syllabus.
From now on, I will quote parts of the syllabus (which I’ll indent), followed by my comments (which will be outdented).
These three sentences appear consecutively and will be quoted in their entirety, lacking only the citations in the original.
QUOTED (sentence # 1): One key provision [of ObamaCare] is the individual mandate, which requires most Americans to maintain “minimum essential” health insurance coverage. :UNQUOTE.
Suggested replacement: “The mandate of SearleCare is that all US citizens are automatically provided minimum essential health insurance coverage, with costs being completely covered by the US government. This insurance is guaranteed by the full faith and credit of the United States.”
QUOTED (sentence # 2): For individuals who are not exempt, and who do not receive health insurance through an employer or government program, the means of satisfying the requirement is to purchase insurance from a private company. :UNQUOTE.
My proposal eliminates the role of private insurance companies in the provision of health care. Private companies may continue to insure (for example) cars and property, but not the health of our citizens. Of course, that would mean these companies would be faced with a possibly fatal loss of income. Perhaps one way to soften the blow would be, after a designated transition date, to allow these companies to simply keep their assets (premiums already collected from policyholders), while releasing them from having to pay any claims and disallowing them from collecting any future premiums.
Also, perhaps policyholders could be severed from these companies on a gradual basis. For instance, during the first month, policies would be declared void for holders with last names beginning with the letter A.
As to the rise in unemployment due to loss of insurance-related jobs (such as claims adjustor), newly-created jobs could be expected from an economy freed from the uncertainty inherent in our current health care system. I cite in particular the effects, especially on the middle class, of the sudden onset of catastrophic illness. A middle class, so freed, would be able to spend more, which would help the economy. Also, there is the matter of the many potential entrepreneurs who would no longer fear leaving their employers to start new enterprises (sources of new jobs) simply because of the prohibitive costs of self-insurance.
Also to be considered is the overall, cost-benefit picture. If an employee, as under our current system, has (say) 2% of his income deducted for health insurance premiums, that money serves two purposes:
· To pay for health care should he need it;
· To provide an income stream to the insurance company which wishes to make a profit.
If government were to fulfill the function of insurer, we would eliminate the need for the private insurance company to make a profit – which is the reason why premiums are as high as they are and why insurers fight like the devil to deny claims.
Of course, some people would be quick to prefer the private system over management by some government agency. And I would agree with them, except for one thing: I foresee a new type of government created under a new Constitution which would eliminate the problems usually associated with typical government bureaucracies. The system I have in mind eliminates the 50 states as separate legal entities.
For more information on this new Constitution, based on a concept I invented called Cross-Sectional Representation, please go to these links:
QUOTED (sentence # 3): Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. :UNQUOTE.
The correct state of affairs is that our government has a mandate to “provide for the general welfare” of its citizens (as stated in Article I, Section 8 of the US Constitution). We-the-People already make “shared responsibility payment[s]” when we pay our taxes to support the elements of the public infrastructure meant for the common good. This so-called “shared responsibility payment” as envisioned in ObamaCare is nothing more than a device to provide health insurance companies with millions of new customers.
QUOTE: The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. :UNQUOTE.
Fascinating! If you scroll down to page 11, which is part of the (literal) Decision of the Court, you’ll read, “This statute protects the Government’s ability to collect a consistent stream of revenue, by barring litigation to enjoin or otherwise obstruct the collect of taxes.” I highlighted the word “ability” in the preceding sentence, which is not what I expected – which, instead, was “enumerated power.”
What the Anti-Injunction Act is saying, “You must first pay what might be ultimately determined to be an illegal tax before you can bring suit in Court against it. Before your lawsuit can proceed, you have to commit a crime, if this turns out to be judged an illegal tax, by being forced to pay it.”
QUOTE: But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. :UNQUOTE.
According to the part I yellowed above, the Court wants to have it both ways:
· The “shared responsibility payment” isn’t a tax, simply because ObamaCare says it isn’t;
· The “shared responsibility payment” is a tax “for the purposes of the Constitution” because the High Court, later in this ruling, says that it is.
If a “payment” is a “tax” for the “purposes of the Constitution,” why should it matter how the Anti-Injunction Act, passed under the authority of and beholden to the Constitution, views it?
QUOTE: 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. :UNQUOTE.
The individuals at issue aren’t “doing nothing.” Their action (that is, their refusal to buy insurance) will end up placing stress on the resources of emergency rooms which cannot, by law, turn them away should they someday need help. Therefore, that act of “doing nothing” has consequences in fact. This is similar to a citizen who “does nothing” when summoned by the draft board. By not becoming a soldier, his non-action has real consequences regarding the ability of the country to defend itself.
If enough people decided to do nothing by not filing their income tax returns or not paying overdue taxes, they could be said to be undermining commerce. But you’d better believe the government will “regulate” those individuals (straight to the jail house, if necessary) for doing nothing. Not to mention the sin of “doing nothing” by failing to appear before a court for jury duty.
QUOTE: [The Founding Fathers] gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. :UNQUOTE.
As for that first sentence – “regulate” vs. “compel” – was the government acting improperly with its various economic stimulus packages because it was trying to “compel” (that is, “stimulate”) the economy? A lot of Americans feel that having bailed out industries that failed due to incompetence or irresponsible investment practices did not constitute proper “regulation.” A bailout is not a regulation but instead rewards those who failed to at least self-regulate.
More on “regulate” vs. “compel” – in terms of Article I, Section 8 of the US Constitution: “The Congress shall have power to…promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective wirings and discoveries.”
By granting patents which can create new industries or destroy old ones, isn’t the government doing more than just “regulating” commerce (isn’t it actually helping to redefine it)? If the Commerce Clause were to be taken into consideration here, it would seem that Congress would be overstepping its authority to “regulate commerce” by granting patents that could radically transform it.
“Commerce” seems to be such a broad category that the government has to be given broad powers to deal with it. For one thing, if a new invention were to appear on the scene, which threatened to destroy an entire US industry (for example, one to enable cars to run on water instead of gasoline), you’d better believe our government would find some pretext (which the Supreme Court would rubberstamp) to either deny a patent or to somehow control the new technology.
As for that second sentence, consider this part: “the Federal Government is a government of limited and enumerated powers.” The problem here is actually the basic flaw of our entire system. That is, if the Feds have limited and enumerated powers which are solely determined by the interpretations of a majority of a Gang of Nine (the Supreme Court), we don’t really have a government of “limited and enumerated powers.” We have a government that satisfies the opinions of at least five men – further undermined by the fact that this case, and many others, are the result of 5–4 decisions of this Gang. Of course, when justices die or resign giving control to new justices, those 5–4 decisions could be reversed.
So much for “enumerated powers.”
QUOTE: Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically. The Medicaid expansion thus violates the Constitution by threatening States with the loss of [all of] their existing Medicaid funding if they decline to comply with the expansion. :UNQUOTE.
Fine. But couldn’t Congress have gotten around this obstacle by first repealing the Medicare Act and then passing ObamaCare? Congress does have the right to repeal legislation. So if the states were to be totally cut off from receiving Medicare funding, due to the revocation of the original law, I’m sure they’d all be willing to sign on under ObamaCare so as to receive the payments for the groups previously covered as well as those ObamaCare wished to included.
Some Closing Thoughts
State-imposed auto-insurance purchases: My state (Illinois) mandates that no one can drive without having first purchased auto insurance. Some might argue that the Commerce Clause (a federal creature) doesn’t apply here – that this is an issue of public safety. Very well, then. Couldn’t public safety be said to be at stake in the case of those who don’t buy health insurance? The uninsured might end up untreated, thereby allowing their conditions to get worse. And aren’t the uninsured part of the public whose safety is at issue?
Or that mandate could be claimed to be an enforcement of the social contract that reads, in part, “To the greatest extent of each man’s ability (with the aid of a government subsidy, if necessary), he should do his part concerning a ‘shared responsibility’ to participate.” In a similar vein, an early SCOTUS decision defended the military draft by citing something not mentioned in the Constitution: a duty to serve.
Chief Justice John Roberts: I’ve seen recent photos in the press showing John Roberts smiling from ear-to-ear. He seems to be pretty pleased with himself, though in light these words (not to mention his ObamaCare decision’s words), I can’t imagine why:
"The role of an umpire and a judge is critical.” So says Chief Roberts. Tell you what. If the rules of baseball were as vaguely written as was our Constitution, you’d have the equivalent of 5-4 decisions in major league ball parks. You might even see umps engaging in fisticuffs to “prove” their point – which isn’t that far removed from the attitudes held by some of our Justices.
1% vs 40%: “Rather, it makes going without insurance just another thing the government taxes..." Would Chief Justice Roberts have said this if the tax was (say) 40% (or 2000%) instead of 1%? At what point does a “tax” become, not a means of raising revenue, but an instrument obviously meant to coerce certain behaviors?
Constitutional conflict: Perhaps there’s a conflict between the Constitution’s Preamble and Section 8 of Article I:
Section 8 says, “The Congress shall have the power…to PROVIDE for the…general welfare…”
The Preamble says, “…in order to…PROMOTE the general welfare…”
If we choose Section 8’s version (which uses the word “provide”), then that would be the basis of a welfare state, yes?
I’ve argued for 20 years or so that we need a new Constitution to entirely replace (not merely amend) the current one. The points I made above, the unconstitutionally vague nature of the Constitution itself, and the frequency of 5-4 SCOTUS decisions should be persuasive on this point.
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Steven Searle for US President in 2012
Founder of The Independent Contractors’ Party
“If it can be said that reading a Supreme Court decision can induce insanity, imagine what writing one must do.”
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