Saturday, June 30, 2012

My take on the ObamaCare Ruling

My friend and old college roommate's mother Mary wanted me to try to explain why this might be a good thing in plain English.  I've been told I'm pretty good at that.  So I took a crack at it.   It's a little Morganesque in its approach in that you'll have to stick with me, but we'll get there in the end.  Here goes:

In my humble opinion, there are two things wrong with the ruling.

One, the court had to basically re-write the law right there in the courtroom to uphold it. This is not the Supreme Court’s role according to the Constitution. It has two jobs. 1) to interpret laws that are challenged in all the lower courts until they get to the supreme court, and 2) to determine if laws congress writes jive with the Constitution ... but this only happens when laws are challenged and they work their way up through the federal court system via challenges.

But one could argue that what it did in “re-writing” the law was really to interpret the funding part of the law for what it actually is. Which is what the administration adamantly denied it was the whole time it was trying to get it passed, and derided anybody who called it what it was.

A TAX. Kind of like a tax incentive. Which, once the liberals figured out that Libertarian organizations backed by the Tea Party and Republicans were actually seriously going to challenge it in court ... they suddenly started calling it (in court, not on TV).  And after it had passed, of course.

26 states just sued the federal government over Obamacare. That is huge. 26 states not only said “we don’t want this”, but “hell NO we don’t want this!” And the 26 states won the argument, lost the battle, but now has a tremendous opportunity to win the war.

The original argument the administration had was that the law was Constitutional because Congress has the power to “regulate commerce” between the states. (I could go off on a tangent here on what the founders meant by “regulate”, but it’s beyond our scope here). This excuse has been used by Congresses and Administrations for 70+ years, and it has been abused, and it’s a big part of the reason America is in as deep doo-doo as it is financially speaking, and in terms of liberty as well.

So Roberts got 7 of the 9 justices to say “No. The Commerce Clause of the Constitution does NOT give congress the power to compel people to buy a product” (in this case, health insurance). That’s pretty big right there. (It’s not big enough for me, but it will do for now. Baby steps. And this is more than a baby step.)

Roberts is the Chief Justice. This means he writes the final opinion and summarizes what the court says whether he votes in the minority or the majority. But the kicker is ... he votes last. This means Roberts knew how the other 8 had ruled before he wrote his own opinion. He could have killed it completely, and he chose not to.

Now you have to understand something about Roberts to hold off judgment like I did yesterday. I and many others were stunned that he of all of them save maybe Alito (that might have been more stunning) .... would uphold it. I know this guy is a serious constitutional conservative. Lots of conservatives will be bashing him for quite some time now, some with a little justification ... BUT ... I know Roberts does not like Obamacare and he would like to see it go away. But he voted to let it stand.

Which left me asking ... why? Why would he do that when the power was in HIS hands to kill it right then and there, and I KNOW he thinks it’s a crap sandwich with crap sauce and some extra on the side? Like John Edwards and little Sally Muckenfutch. “Whayh"? Whayh?” (this is a Glenn Beck show reference that only listeners will get ;-) )

If you read the first few paragraphs of Roberts’ opinion, it has practically nothing directly to do with the case and everything to do with why he ruled the way he did. It’s an old-fashioned civics lesson, and it is a good one. And if you read that, and his opinion, which let the law stand as a tax ... between the lines, it says why.

What is that what Roberts said (to paraphrase) was, “ok, Congress has the power (by precedent ... previous law ... another touchy subject, but ....) to use the tax code to encourage or discourage certain behaviors for the General Welfare (that General Welfare clause, yes, it is in the Constitution and it isn’t the “Good’n’Plenty" clause though it’s been used that way for decades ... but.... digressing again).  So, if we interpret what you originally said wasn’t a tax as a tax, and that’s what it looks like it is, then it’s not unconstitutional.” (note that it is not unconstitutional to make bad laws).

This is the second thing I don't like about it (other than the fact that the law still stands, but constitutionally speaking ....)  I have a problem with using the tax code to encourage or discourage behavior, but ok. In the past, it’s always been “you don’t have to pay as much tax if you do this, or if you don’t do that.” What this ruling says is “if you don’t do this, you have to pay THIS tax”. At first it might sound like a subtle difference, but it is the difference between charging your for not doing/not doing something and charging you less than you would have been charged for doing/not doing something. They're directly charging you for not doing something.  Hence the cartoon. “No, I don’t care to buy that pack of gum." .... “Ok, that will be $2.35.”

But on the flip side, Roberts is reminding us, We the People and the “Several States”, as the founders called the collection of individual states that formed the United States --- have the power to revoke any [tort] law we want to.  (Oh, how I'd like to see that 17th amendment repealed to return the Sentate's power to the States).

He reminded us in those first few paragraphs of his opinion that We the People can still say “no” through Congress (elections), through ballot initiatives in our states, via our state legislatures, etc. The states can say “no” as well through an act often referred to as nullification.

Then he took the opportunity to do several things, some of them legal, some of them political.

1) Congress does not have the power to compel people to buy a product via the commerce clause or the general welfare clause (legal)

2) As a tax, which the Democrats swore to us it wasn’t (it wouldn’t have passed otherwise), it can stand as law (legal)

3) If it’s a tax, then the whole thing has finally been exposed to the American People as the fraud that it was from the beginning. The administration can no longer argue that it was not a tax. And it is not just a tax, it’s a tax on people who don’t buy insurance. And most people who don’t buy insurance are people who are making less than $250,000 a year. Which is exactly the people Obama promised not to raise taxes on... “one single dime”, I believe were his exact words. When Republicans charge Obama with a massive tax increase during this election, he can’t really say it’s not a tax, because if it’s not, it’s unconstitutional! (Political)

4) Nullification is now definitely an option. The court also ruled that the part of the law that said federal funding for things other than expanding medicare (like highways, etc) cannot be withheld from states for not complying with Obamacare. Many states (governors, legislators) were very, very afraid to go the nullification route because of this huge, coercive stick in the law. It would be a huge budget hit for the states, even FURTHER bankrupting them over what Obamacare would do. That bit of the law has been struck down. There now isn’t really much to lose for a state to tell the Federal Government “Take your Obama Care give yourself a colonoscopy with it!” (legal AND political)

5) We on this side are now FIRED UP! Attendance at two local Tea Party meetings was way up yesterday. I suspect it was across the nation. And at our meeting, at least, there was not a sense of panic.  There was a sense of calm, and determination.   Had the law been struck down, many on our side would simply figure we had won and relax, and it would be THEIR side that would be fired up --- leading very possibly to 4 more years of Obama. Which would be disastrous (witness what got caught on tape telling that Russian envoy about telling his boss to wait until after the election and he’ll have more leeway to weaken America’s --- and Europe’s -- defenses in Europe). (Very definitely political)

Plus, if We the People (or the States) repeal Obamacare, it can't be blamed on the vote of an elite 9 with 5 "activist" judges.   And while the libs will never actually shut up about it, perhaps we can get them to pipe down a bit.
Romney now has a better chance to win (which more importantly means that Obama stands a better chance of losing), and the Senate might flip to the Republican side. Plus conservatives now have a SCOTUS precedent to counter that damned 1942 wheat case on the commerce clause being used to force people to do things.

 My focus in the Mid Mo Patriots is education. We have to know our shit to argue back when some freakin’ liberal takes the floor in front of us and others, and nobody challenges them. Many here know of this as my Stop an Echo campaign.  We’ve been lax too long, trusting our representatives to do what’s best for us. We forgot what our founders knew in their bones.


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