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:
