The Affordable Healthcare Act, known as the Health Care Reform or Obamacare, Is one of the most divisive and controversial issues to face the supreme Court in decades. It is a law that was passed by a single Party, with deals and provisions that politicians boldly asserted they never read nor completely understood. It has maintained a net disapproval with a majority of Americans since July 2009, even as politicians that supported the law have struggled to find a way to explain what makes it worthwhile. Over the past 2 1/2 years it has continuously been the source of provisions and requirements that are nearly universally agreed to be detrimental and a negative influence on the general economy.
Yet, the Supreme Court upheld this law. Why?
Rightly, the opinion of the majority, presented by Chief Justice Roberts, denoted that
“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.” – page 12
Thus the question before the Supreme Court was only and always ‘can it be done’, never ‘should it be done’.
To that question is the thought, is this a tax? Is this interstate commerce? Is this an expansion of the power of Congress and the Government over the people?
Each of these are dealt with one by one. Obamacare is not a tax, because it is described as a penalty – yet it acts like a tax in being collected by the IRS, and derived from the same means as other taxes (April 15th taxes), and gathered by the same Government institution that presides over taxation (IRS). It is this defense that allows the Supreme Court to rule on the case. But we will return to this later.
Monetary penalties imposed for the sole purpose of negative reinforcement (alluded to on page 42), to reprimand individual choice and action that runs counter to the expressed opinion of certain branches of Government, is not a tax. It is a penalty of the exercise of Liberty. In our admittedly non-legal opinion it is a doorway to control over the masses in a manner never before possible – first by economics, then by social segregation, ultimately followed by force as has been repeated in history far too often.
The dissent of Justices Scalia, Thomas, Kennedy and Alito takes directly aim at this when they state, unequivocally
“What is absolutely clear, affirmed by the text of the 1789 Constitution, by the Tenth Amendment ratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon the sovereign States. Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.” – page 128
Still we move on to the real meat of the opinion and decision, the individual mandate. In this Chief Justice Roberts states
“The power to regulate commerce presupposes the existence of commercial activity to be regulated…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.” – pages 2 and 3
To this we agree. Health insurance is currently restricted to intrastate commerce. Further, and more to the point, no commerce can exist were no purchase has been made. Compulsion to act denotes an explicit lack of desire or willfulness to act. This is the definition of the antithesis of freedom, the birth of uniformity, the envelopment of the hive mind and death of the self.
We disagree with this statement though
“And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance.” – Pg 4
We would ask the Chief Justice if the penalty should be considered a reward instead? A gift for not acting as the Government has mandated? Furhter “shall” is defined as “will have to” and
Based on this we wonder how it might not be construed as a punishment to those who go without consumption of a product.
Which brings us to another thought. Taxation without purchase. By the precedent provided by the Supreme Court, it is now possible to tax a person for NOT buying cigarettes. We are sure some legal scholar somewhere must have a few thoughts about that. Something that the Chief Justice denotes
“If the power to regulate the armed forces or the value of money included the power to bring the subject of the regulation into existence, the specific grant of such powers would have been unnecessary.” – page 25
Which leads us to the inevitable conclusion (based on the argument of the Commerce Clause) that
“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.” – page 26
Which we see is ultimately the end result of upholding Obamacare. No matter the reason of passage, the essence of the result is that the power of Government grows exponentially. An more visual example is as follows:
A hilly area prone to brush fires near residential homes is subject to a planned burn intended to limit future fires. Adequate precautions are not taken as expectations of a brush fire occurring are increasing. The result is that several homes are destroyed by the raging fire that ensues, but fewer than the brush fires were expected to claim. Because of the artificial nature of the fire and determined actions to fight the fire, when rains come thereafter the area is instead destroyed by flooding and mudslides.
The original intent was positive. To save homes, at the unexpected cost of a minor portion of those homes. The actual action was flawed, but successful in the short-term. The logical and predictable long-term net result was the destruction of the community. Does it matter that for a period between the fire and the flooding everything seemed to be beneficial?
In the same manner, not finding Obamacare constitutional because it abuses the power of Government, but allowing it because it is a constitutional tax, ultimately results in the same kind of devastation.
It is why, as Chief Justice Roberts states, in the discussion of the Necessary and Proper Clause
“But we have also carried out our responsibility to declare unconstitutional those laws that undermine the structure of government established by the Constitution. Such laws, which are not “consist[ent] with the letter and spirit of the constitution,” McCulloch, supra, at 421…” – page 34
Thus Chief Justice Roberts resorts to viewing Obamacare as a tax hike. A view that would demand, based on prior precedent (page 37), to allow the law to be upheld. This relies heavily on the fact that the 4 million Americans expected to forgo the law and accept the “penalty” are not viewed by the Government as criminals and are only fined instead of receiving punishment that would be expected for a criminal action (page 49).
As stated earlier, this means that Obamacare – as written for the majority by Chief Justice Roberts – is viewed simultaneously as not being a tax (and allowing the Supreme Court to rule on it), being unconstitutional (as it is an expansion of the power of Government over the people and beyond the scope of the Constitution), and a tax (which is within the power of Government and thus constitutional).
He concludes therefore
“Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.” – page 50
Thus the opinion of the majority decision takes a swirling mass of rules and complexities and Government power and justifies a law that more than half of its statements convincingly prove unconstitutional. Only by taking simultaneous understandings, and ignoring the ultimate outcome, can we retain Obamacare. But as stated at the start, the only purpose of the Supreme Court is to rule if Government may act in a certain manner, no matter the outcome or damage such action may create.
Legally, Obamacare can pass muster, if viewed with the proverbial squinted eye and cocked head. For supporters of the law, that is all that is needed. For the majority of Americans since 2009, this is an expression of why lawyers are considered akin to used car salesmen, and comprise a supermajority of politicians.
We feel that the Supreme Court has failed, in the majority opinion. The purpose of Government, in regard to the Constitution, is not to see how far the boundaries of power can be pushed but how best to govern a diverse and incredibly free people. The Supreme Court’s mandate, in our non-legal opinion, is to ensure that governance and power are balanced, always in favor of the people. This necessitates that not only must a law be constitutional if viewed in the most liberal of lights, it must also be constitutional in its intention.
As stated by the dissent, and as we have stated, this is not the case in this law. Worse, any law so convoluted as to simultaneously be interpreted 3 different ways, is a law that almost by definition will be abused for the power it provides.
Yet, if Chief Justice Roberts is correct, and the Supreme Court is intended to only blindly rubber stamp (non-)constitutionality upon laws without regard to intent or consequence then they have acted in the most forthright manner, regardless of the toll of that action.
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