Tuesday, November 19, 2013

Book review of "Why John Roberts Was Wrong About Healthcare..."

Book Review by Rick Adamson
© 2013 Rick Adamson
By Rick Adamson 11.18.13

Why John Roberts Was Wrong About Healthcare: A conservative critique of the Supreme Court’s Obamacare Ruling by Senator Mike Lee, 2013

Senator Lee is from the State of Utah.  He is a lawyer and a Constitutional scholar.

The Supreme Court rendered its ruling on the Patient Protection and Affordable Care Act of 2010 (ACA), known to many as Obamacare on Thursday, June 28, 2012.  When I heard the news I was very disappointed because I thought the Court would find the law to be unconstitutional.  As I heard more about it I was happy that the Court found that under the Commerce Clause ACA would be unconstitutional thus limiting the Federal Government’s ability to regulate certain activity.  In this case, inactivity, the government cannot regulate inactivity (failure to purchase health insurance) by the authority of the commerce clause.  However, the Court found it to be constitutional under other provisions of the Constitution.  I was somewhat dumbfounded.

Then I stumbled across this book of less than 100 pages that explained very concisely what the Court did.  I was astonished.

Senator Lee explains in his introduction to the book  “During Chief Justice Roberts’s first seven terms on the Supreme Court of the United States, he distinguished himself as a fair-minded jurist and a true constitutional scholar— a man seemingly committed to the rule of law and to core constitutional principles. That hard-earned distinction was turned on its head when, on June 28, 2012, the Chief Justice— writing for a five-to-four majority in National Federation of Independent Businesses v. Sebelius, 567 U.S. __ , 132 S. Ct. 2566 (2012) (“ NFIB”)— essentially rewrote key provisions of the Affordable Care Act in order to uphold the law against a constitutional challenge.”

1.  Senator Lee explains that the Court unanimously concluded (to the surprise of almost no one) that those who fail to comply with the ACA’s individual mandate (the fine people have to pay if they do not purchase health insurance) will face a penalty, and not a tax, such that a challenge to the mandate is not barred by the Anti-Injunction Act. This simply means that the Court cannot rule on a tax that is not in effect.  If the mandate (effective in 2014) was a tax, the Court would have had no authority to rule on it until 2014 when it would become effective.  So, the Court chose to view the mandate as a penalty which was not subject to the Anti-Injunction Act.

2.  Then Senator Lee then explains that the Court noted in enacting the ACA, Congress relied on the Constitution’s Commerce Clause as the source of its authority to require individuals to purchase health insurance and penalize those who fail to comply. The Court concluded that Congress has no authority to impose such a mandate under the Commerce Clause because the Commerce Clause does not authorize the regulation of inactivity, in this case, the failure to commit the act of purchasing health insurance.

A separate majority, nonetheless, sustained the ACA’s individual mandate as a valid exercise of Congress’s authority to impose taxes.  This majority then concluded that because Congress could have enforced the mandate by means of a tax, the Court would treat the penalty attached to the mandate as if it were a tax.

3.  Senator Lee goes on to explain that in a third issue considered by the Court, ACA’s Medicaid-expansion provisions, they concluded that the ACA’s Medicaid-expansion provisions, as written, would unconstitutionally coerce the states into expanding their Medicaid programs and was therefore unconstitutional.

However, rather than invalidating the Medicaid-expansion provisions as one would expect in light of the Court’s coercion ruling, the majority effectively rewrote them by categorically ordering the government not to exercise its right to “withdraw [from states] existing Medicaid funds for failure” to expand their Medicaid programs.

Senator Lee concludes that the Court basically rewrote (completely circumventing the legislative process) the law as follows:

In the first instance, they concluded that the mandate was a penalty and not a tax thereby giving them the authority to hear the case, in the second instance concluding the mandate was a tax and, therefore, constitutional pursuant to the power to tax and lastly concluding that the Medicaid-expansion provisions were unconstitutional but were to be ignored and not enforced by the Government.

The law stands as written (has not been changed) leaving within it numerous references to taxes and penalties as they were intended by Congress.  The mandate provisions do not contain references to taxes but rather to penalties as intended by Congress.  In areas meant to be taxed, such as the tax on medical devices and the so called “Cadillac plans” the law speaks of taxes.  Further, ACA still contains the unconstitutional Medicaid-expansion provisions which the Court instructed the Government not to enforce.

Senator Lee  states “By arrogating to itself the power to legislate— fundamentally altering a law passed by Congress, and in effect passing a new law— the Court overlooked the distinct and narrow role of the judiciary.”

So we have a law, which, because the Court altered it, is a law that was not passed by Congress.

Robert flip flopped from one side to the other on each of the above issues before finally siding with the liberals.  What motivated the switch? Most theories seem to focus (in one way or another) on the possibility that Roberts was motivated by a desire to protect the Supreme Court’s credibility as an institution. According to this theory, the Chief Justice might have been influenced by public statements. Or maybe to save not only the credibility of the Court, but also his own good name.

By his ruling, Roberts added hundreds of billions of dollars to the federal deficit, by way of his Medicaid ruling, forever tarnishing his legacy as a Justice.

This is a very informative book that I highly recommend.  You can get the digital version at Amazon for under $4.00.

Other reviews can be seen at:





No comments: