Thursday, June 28, 2012

Fooled Again

And the parting on the left
Is now the parting on the right
And the beards have all grown longer overnight
--The Who

After discussing our flawed judicial process yesterday, I felt pretty much ready for any ruling rendered by the Supreme Court rendered on Obamacare today. But I must admit surprise. Am still chewing thru the 193 page opinion so my thinking is a work-in-process, but I'd like to share a few early thoughts here.

First, the gist of the ruling. The majority of the Court found the 'individual mandate' to be an invalid exercise of the Congress's power under the Commerce Clause and the Necessary and Proper Clause. This is a very positive finding that should have ended things right there. Indeed, many 'speed reading' members of the media anxious to score the scoop appeared to stop right there and began broadcasting that the Court had struck down the law.

The real eyebrow raiser followed, however. The four liberal judges and Chief Justice Roberts joined to declare the mandate as imposing a tax on those choosing to not buy health insurance, and concluded that the individual mandate should be unheld as within Congress's power under the Taxing Clause.

While I am not (yet) versed on all relevant Supreme Court case law, this ruling struck me as extraordinary when I initially read it--and hours later it still does. It appears to me that 'legislating from the bench' has taken on quite literal meaning here, as a majority of Supreme Court justices have endeavored to rewrite a statute rather than to interpret it. Moreover, it appears that this action places the power to tax in the hands of the judiciary.

The other portion of the ruling, and one that may be a 'sleeper' down the road in its effect, is that 7 of 9 judges concluded that the portion of Obamacare that requires states to expand Medicaid or face loss of Medicaid funding violates the Constitution (10th Amendment et al). It is not yet clear to me precisely what the ramifacations of this ruling might be, but in a vacuum this does affirm the principles of federalism. Can't help but think this might embolden some states to push back more strongly against federal laws that they feel are unjust.

Ron Paul was not surprised by the SC ruling, stating that "the Court has a dismal record when it comes to protecting liberty against unconstitutional excesses by Congress." He observes that everything that government does is in fact a 'mandate.' The broader issue is that "this compulsion implies the use of government force to those who refuse. The fundamental hallmark of a free society should be the rejection of force. In a free society, therefore, individuals could opt out of 'Obamacare' without paying a government tribute."

Attention will likely turn to this fall's election as a means for repealing the healthcare law. Perhaps the most positive outcome of today's ruling that it may motivate more people to engage in the process. Perhaps more people will consider the Tea Party tenet of limited government vis a vis our current position.


dgeorge12358 said...

If anarchy, therefore, were the inevitable consequence of rejecting the new constitution, it would be infinitely better to incur it; for even then there would be at least the change of a good government rising out of licentiousness.
~Centinel, Philadelphia Independent Gazetteer, 1787

fordmw said...

As noted yesterday, AntiFeds were surely on point...

dgeorge12358 said...

The Anti-Federalists identified the loopholes 225 years ago.