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Thoughts And Concerns On The Supreme Court Decision On ObamaCare
I want to focus on three general areas of expression and argument in Thursday’s decision upholding the constitutionality of the typically misnamed, “Patient Protection And Affordable Care Act” (referred to as Obamacare). My main thoughts of my mistaken prediction about Justice Kennedy, my perplexity at Justice Roberts’ vote and argument, and my discomfort with some of the Republican discussion:
1) First of all, I have been saying for many months that this most momentous case for the nation would be decided by one man, with four lining up on each side and the seemingly ambiguous and somewhat unpredictable Anthony Kennedy issuing a life-changing decree for the entire country. But that presumption was incorrect. Kennedy was among four justices who unambiguously asserted that the entire statute was unconstitutional and should be scrapped. It was Chief Justice John Roberts who was expected to be in that block, who lined up with the four liberal judges to deem the 2700-page incomprehensible act of serial unconstitutional intrusions on both state and liberal liberty and commandeering of private property actually constitutional. I have to say that I can’t imagine what he was thinking. And that’s really scary.
I want to talk about specifics of Roberts’ decision and statement and why I think (gee, that sounds weak; I’m confident that I know) that his decision is misguided and a historic horror for the country. But firstly I want to say that I misread Kennedy on this one. The weight of Roberts’ decision is this simple: with the other four, he could have struck this hideous legislation dead as it undoubtedly merits. But he let it live and even if Republicans take full control of Congress in November, and it is eventually repealed legislatively, the nation will long live with the judicial implications of Roberts’ decision. I asked prior to the decision, if the intrusion and direction of this act is constitutionally permissible, what is it that Congress cannot demand of us (on penalty of a “tax,” as it turns out, and why not? I can’t imagine what.)
2) Now, some Republicans, seemingly either projecting or adopting the best possible perspective on this, have supposed that Roberts’ decision puts a live issue with a 2010 track record on the table for the fall campaign. Sarah Palin, whom I love no matter what fools call her a fool, said that this decision fires up the Republican base for the fall campaign. But even the more established erstwhile titans of conservative deliberation, George Will and Charles Krauthammer, and political consultant and analyst Dick Morris, who has been chased unambiguously to the Republican side by the leftward resolve that Democrats have taken to, also cheered the political benefit of the decision. Roberts has put the matter back in the hands of the people and the political process, you see.
There might be some truth to this. But, that doesn’t undo the titanic damage to American judicial precedence, and most importantly, IT ISN’T A SUPREME COURT JUSTICE’S (INSERT EXPRESSIVE ADJECTIVAL EXPLETIVE) JOB TO AFFECT POLITICAL INFLUENCE. I want the left beaten as badly as anyone, but particularly at the Supreme Court, the purpose and integrity of judicial duty is sacrosanct. They are to decide on the constitutionality of the question… PERIOD! In his statement on the decision, Roberts himself said that it was not his job to decide on the wisdom of the legislation. And some called his decision to decline to interfere with Congressional legislation one of judicial restraint! But there are big problems with all of this.
No, it’s not Roberts’ job to defer over the wisdom of legislation. But it’s his unmistakable DUTY to protect the constitutional rights of liberty and property of the American people, not to mention the deference the Constitution affords the states over non-enumerated federal powers. And this legislation is a repeated and enormous affront to both. The Declaration of Independence says the creator-endowed right of liberty is unalienable. That means that in America, not only can you not, as in traditional societies, surrender your liberty in indentured servitude, neither can your liberty be overridden through the political process. And it’s the job of the court to recognize and defuse the threat.
As for restraint, the American people and constitutional standards are grievously molested. And he’s restrained with those other champions of judicial restraint: Ginsberg, Breyer, Sotomayor and Kagan. I feel warm and fuzzy all over. Actually, he seems like a nice and bright guy as acquaintances report he is. So, I’d like to hear a thoughtful explanation of why, for this dereliction of duty to country and the Constitution, HE SHOULDN’T BE HANGED! It’s true that other details of the decision staunched the overextension of the Commerce Clause and disallowed the extortion to make states comply to receive Medicaid funding, and actually make collection of funding that could well make implementation even more difficult than the legislation appears to be as it stands. But the bottom-line is that it’s horribly unconstitutional and, but for Roberts, it could have been dead.
3) My last great concern is of all of the Republican talk about “replacing” Obamacare with their own system that preserves the elements that it is said that the public “likes,” like barring “discrimination against individuals with preexisting conditions and mandating that a parent's plan cover children until they are 26," when they should no longer be children. This provision impairs that ambition and is a disservice to young people. And I pointed out almost three years ago when they were designing this law that insurance that covers preexisting conditions is NOT INSURANCE! But besides all of that nonsense, I hate Republicans making liberal proposals. It’s liberal because it indulges fantasy and facilitates failure. The liberal idea is that government can mandate something and… POOF! It’s free! Milton Friedman made it plain over 30 years ago that “there’s no such thing as a free lunch.” They could bring an actuary in to estimate what will be the enormous cost to insurers and the system as a whole of imposing such mandates. Smaller companies wouldn’t survive them. Companies that can are going to pass the cost on to the policy holder, not take a loss. And last but not least, it will be a Republican plan that will be blamed for lessening competition and increased cost.
So how are preexisting conditions cared for? Families, churches, communities and other voluntary efforts, as is practically and morally proper. Those closer to the situation can judge how to help more efficiently and with a human touch. Surely there are some responsible newer Republicans and representatives who can say, “These ideas are impractical and unconstitutional. And I’m charged to help society and defend the Constitution. So, I won’t vote otherwise.” Perhaps the voters would run you out of town on a rail: something to think about. After all, it’s only the truth and your honor.