Obamacare survives ‘near-death experience’, again

That’s how the Wall Street Journal described the second Supreme Court ruling to uphold the Affordable Care Act, as written.

Which is precisely what was at the heart of the case before the justices yet again, what the AFA said. Here’s the later version of the WSJ story, though the news alert that dropped into my inbox said this in opening summary:

The U.S. Supreme Court ruled the Obama administration can continue to subsidize health-insurance purchases by lower-income Americans across the country, a decision that preserves a centerpiece of the Affordable Care Act.

The ruling marks the second time President Barack Obama’s signature domestic policy achievement has survived a near-death experience in the courts, and leaves the law on a firmer footing for the remainder of his time in office.

And thus

rescuing for the second time the most ambitious social program in nearly 50 years and ensuring that the law’s ultimate fate will be in the hands of the political process.

Which nearly everything is, these days. In the hands of the political process, that is. Except for those matters  in the hands of the judiciary, though that wing has long been bending in the direction of the prevailing political winds.

As usual, there’s a lot of coverage out there, something to fit any viewpoint. Though I’m a legal and policy wonk, my angle is of a purist, how carefully we adhere to the truth and meaning of language of law, policy, and everything else from political promises to social realities, scientific statements to biomedical facts, faith claims to gospel teachings, and all things as they uphold human dignity.

So the key issue for me is how words were so central to this case and final ruling. Leaving aside the specifics of the AFA, otherwise known as Obamacare, I believe everyone deserves health care. How that is best delivered is debatable. Interestingly, two allegedly conservative justices, Chief Justice John Roberts and Justice Antonin Scalia, differed widely (and wildly) in their views of how to handle the Obamacare wording and challenge to it. And the wording of the opinion and dissent.

The WSJ reports:

The 6-3 ruling, written by Chief Justice John Roberts, upheld a signature achievement of President Barack Obama’s tenure. In buttressing the health law’s legal foundation it raised the odds that it may become as entrenched as Social Security, Medicare and Medicaid.

The case turned on wording, as the WSJ and any other responsible media reported, no matter how else they reported it. In particular, four words: “established by the State”.

Carrie Severino explains at NRO:

On the Chief’s appeal to context, Scalia points out that context “is a tool for understanding the terms of the law, not an excuse for rewriting them.” But, as Scalia explains, the Chief’s opinion does not merely redefine the words “established by the State,” it effectively deletes them from the statute because the majority’s position is that they add precisely no meaning to the law. Yet Congress used this apparently meaningless phrase over and over. “It is bad enough for a court to cross out ‘by the State’ once. But seven times?”

To which dissenting Justice Scalia went to great lengths by delivering his lively and blistering dissent from the bench, which is unusual.

To mention just the highlights, the Court’s interpretation clashes with a statutory definition, renders words inoperative in at least seven separate provisions of the Act, overlooks the con­trast between provisions that say “Exchange” and those that say “Exchange established by the State,” gives the same phrase one meaning for purposes of tax credits but an entirely different meaning for other purposes, and (let us not forget) contradicts the ordinary meaning of the words Congress used. On the other side of the ledger, the Court has come up with nothing more than a general provision that turns out to be controlled by a specific one, a handful of clauses that are consistent with either under­standing of establishment by the State, and a resemblance between the tax-credit provision and the rest of the Tax Code. If that is all it takes to make something ambiguous, everything is ambiguous. (emphasis added)

There was a lot of buzz about judicial activism on this ruling. NRO’s Peter Augustine Lawler posted this in response.

I’m sympathetic with Roberts’s statesmanlike view that the judiciary is not the branch of government equipped, all alone, to save us from Obamacare. So he refuses an opportunity for “judicial activism.” But, from another view, he turns out to be quite the activist, telling Congress what it really meant by its incompetently drafted, screwed-up law. And so if judicial activism is a synonym for judicial legislation, that’s what we have here. Someone might say that Scalia was uncharacteristically the activist for wanting to strike part of the law down. But he claims to be doing the least activist thing by sending the law back to Congress. It should figure out what it really meant and then say that…

All in all, there are some interesting separation-of-powers issues here, as well as the one about the extent to which the Court should scope out the political environment before deciding whether or not to strike a law down.

Yes. Which is precisely the point. It was the point when the Blackmun court wrote abortion into law and cited the Constitution as grounding for it, making that up as it went. It was the point going back to the Dred Scott decision on slavery. Both issues involve classes of human beings denied human rights by the high court.

With this ruling, Justice Scalia said in his dissent, “words no longer have meaning”.

How that atmosphere impacted the decision on how the definition of marriage was deliberated and decided is about to become clear. The task of restoring the meaning of language in communicating human truths is as vital as ever. The merits of Justice Roberts majority opinion may be understandable to many people. But Justice Scalia’s clarifying blast is a valuable call for truth in justice.

Justices order Obamacare back to court

Had President Obama lost the election, it would have been eliminated and replaced by new healthcare reform. But his win doesn’t assure that his signature legislation will survive intact.

For days, I’ve been hearing dizzying roundtable discussions with analysts focusing on different aspects of Obamacare and predicting the impact of the still unfolding law, especially as its component parts go into effect in 2013 and continue to roll out into 2014.

But then it got more immediate Monday, when the Supreme Court got involved. Again.

The Supreme Court has ordered a federal appeals court to take another look at whether a key requirement in the health care reform law violates religious freedoms.

A pending lawsuit from the private Liberty University had claimed, among other things, that the law would lead to taxpayer dollars funding abortions and contraception, a claim the Obama administration rejects. The justices issued their order Monday.

The high court in June had upheld the overall law championed by President Obama, but left room for continued legal challenges to certain aspects of the law’s application.

Justice Roberts was key to the individual mandate withstanding the constitutional challenge, to nearly everyone’s surprise at the time. But he left it in place by calling it what it was, a tax. And now that it is, and is about to be enforced, the door is open to rehear challenges to that tax – and penalty for not paying it – as a violation in itself.

So here we go again.

ObamaCare returns to federal appeals court to resume its battle against religious liberty, thanks to a Monday directive from the Supreme Court that revives the lawsuit brought by Liberty University, a Christian school in Virginia.  The Liberty suit has essentially been put on ice while the Supreme Court dealt with the constitutionality of ObamaCare’s individual mandate.  With that landmark 5-4 ruling behind us, and the entirely new concept of a shape-shifting “tax/penalty” added to Constitutional lore, it’s time for the courts to revisit some of the other places where the federal health-insurance takeover conflicts with our dwindling inventory of inalienable rights.

Liberty University’s suit ran afoul of the Anti-Injunction Act, which says that taxes cannot be legally challenged until they have been assessed.  The tax/penalty pulled some of its remarkable shape-changing tricks to get ObamaCare itself around the Anti-Injunction Act, while allowing the dishonest proponents of the law (prominently including President Obama) to claim that it wasn’t really a tax.  Those pretenses are no longer necessary, and the gigantic ObamaCare taxes are now being assessed, so Liberty University re-filed its suit, without objection from the Obama Administration.

It’s going to be very interesting following these court cases for all the charges being filed against this healthcare law.

But the main attraction will be the university’s First Amendment challenge to ObamaCare’s contraception mandates, which raise a very thorny issue.

(Several, actually.)

The law grants conscience waivers to explicitly religious institutions, such as houses of worship, but not to business enterprises run by devoutly religious people.  In other words, Congress is making laws respecting the establishment of religion and prohibiting the free exercise thereof, which the First Amendment says is a bad thing, even before it gets around to saying that abridging the freedom of speech is bad.

And freedom of speech violation is buried in the law and therefore some of these legal challenges as well. Former Speaker Nancy Pelosi famously said ‘we have to pass the bill to find out what’s in it.’ We’re still discovering, but you have to wonder how little they knew.

Independence Day 2012

What will Independence Day 2013 look like in America?

That thought crossed my mind in the middle of the day, seeing coverage of both celebrations of the Fourth across the country and deliberations of the ObamaCare ruling across the news networks. I’ve been traveling a lot lately and maybe it’s a good thing not to try keeping pace with the onslaught of analysis pouring out over the past week of what Chief Justice John Roberts might have been thinking when he issued the decisive and historic opinion in upholding ObamaCare as constitutional, as a tax. Especially in its implications for the integrity of the Supreme Court.

Had a majority of the justices struck down Obamacare, the court — fairly or unfairly — would have become a bigger issue in the presidential campaign than usual and in ways that could have been damaging to its authority.

Everything has become political. Even the Constitution and Declaration of Independence.

Americans know that the Declaration of Independence proclaims as a matter of fact that they “are endowed by their Creator with certain unalienable rights.” But when Obama recites this line, he omits the word “Creator.”

Listen carefully to how Obama censors that famous line. Here are his own words: “all men are created equal, that each of us are endowed with certain inalienable rights.” He doesn’t say who endowed us.

Obama has done this so often that it can’t be a slip of the tongue or a glitch of the teleprompter. Changing the words of the Declaration of Independence is part of Obama’s determination to remove everything religious and every mention of God from every aspect of our public life in order to fundamentally transform us from “one nation under God” into one nation under the Federal Government, especially the executive branch, with no higher power recognized.

The US Bishops called the Fortnight for Freedom for that reason, and though the event closed with a liturgy and addresses on Independence Day, it really served as a rocket booster to propel the movement to defend constitutional liberties forward.

No government should tell religious organizations either what to believe or how to put their beliefs into practice. We indeed hold this to be an unalienable, constitutional right. If freedom of religion is a constitutional value to be protected, then institutions developed by religious groups to implement their core beliefs in education, in care for the sick or suffering, and in other tasks must also be protected. Only by doing so can the free exercise of religion have any meaning.

This is a year of historic consequence in America. The president, the Chief Justice of the Supreme Court, elected representatives of the republic and citizens who may have taken liberty for granted all have a new – and very different – stake in it.

About that Supreme Court Obamacare ruling

Nearly all the experts predicted it would wind up a 5-4 decision and that Anthony Kennedy would be the swing vote. They got it half right.

Nobody saw this coming.

Chief Justice John Roberts joined the Supreme Court’s four liberals Thursday to uphold the linchpin of President Barack Obama’s plan to expand health coverage to nearly all Americans, a surprise conclusion to a constitutional showdown.

The ruling clears the way for the biggest revamp of America’s health-care system since the 1960s—and sets the stage for a renewed political fight over its merits.

By a 5-4 vote, the court held the law’s mandate requiring Americans to carry health insurance or pay a penalty valid under Congress’s constitutional authority to levy taxes.

They were allegedly going to rule on whether it could be upheld under the Commerce Clause, and they did. The majority said it couldn’t. But Justice Roberts swung in another direction.

Chief Justice Roberts went on to say that the penalty for failing to carry insurance met the criteria for a tax.

Not even the White House prepared for that.

In fact, the high Court decision upholding the mandate as a taxing provision counters how President Obama has described the mandate in the past. The fact is that President Obama refused to frame the health care mandate as a tax during an interview with ABC News in 2009. The President flatly rejected the assertion that the penalty for not purchasing health care insurance should be characterized as a tax. “I absolutely reject that notion,” the President said.

So that’s likely going to be an issue in this presidential election year. A big one, given the size of this tax increase, coming from a president who has relentlessly insisted he would never raise taxes on the middle class. There’s no denying it’s a tax now.

And it may recharge the Tea Party coalition that helped Republicans take control of the House of Representatives in November 2010 on the staunch promise of not raising taxes and not compromising with anyone who proposed to for any reason. Maybe they’ll coalesce around Mitt Romney now that his election is the only way to stop the Obamacare juggernaut that will de facto tax Americans to pay for it. Who knows, this is day one and things have just changed. Dramatically.

Not only did no one see this coming, the White House, Democrats in and seeking office and the liberal media have been trying different strategies in the days and weeks leading up to the Supreme Court ruling to deflect what seemed like an inevitable setback for Obama. The New York Times ran a front page story, above the fold, on the justices dropping in public opinion polls lately, which seemed odd given that they’re the one body that doesn’t answer to the public.

Then that strategy turned to the more recent one of discounting the outcome before it happened, with news stories claiming Obamacare would still be significant reform no matter what the justices decided.

Then there was this, which was interesting. Especially read a day later.

It also was not the result some liberals and Democrats expected before the decision was unveiled this morning.

Little more than 12 hours earlier, the Senate candidate for whom Obama campaigned in Boston on Monday – fellow Democrat Elizabeth Warren – was on MSNBC saying the ruling would be a telling gauge for assessing the politicization of the Supreme Court.

“We need to use this moment to reflect on the importance of the Supreme Court and who sits on the Supreme Court,” Warren told liberal talk show host Rachel Maddow…

“The Supreme Court is wading into really deep waters, and is doing it in ways that, I think, worry us all, and I think it’s a reminder that who sits in the United States Senate, to review those nominations, to vote on those nominations, really does matter,” said Warren.

For emphasis, she added: “It will be about the Affordable Care Act tomorrow, but it will also be about the Supreme Court tomorrow.”

Yes, it sure was. About both. What are they saying now about the Supreme Court? About judicial activism, and the vetting of nominations? About the Affordable Care Act being a huge tax on Americans after all?

Stay tuned. There will be plenty. For starters, the focus moves to the Senate, where Harry Reid is asking everyone to move on now to something else.

And meanwhile, the HHS lawsuits move forward. While the Supreme Court ruling didn’t affect those suits, some justices gave dropped some loaded cues into their opinions that the tax for this healthcare still has to respect constitutional requirements, like “the free exercise of religion” to name one. More lawsuits sure to follow.

Free speech has costs

Like, tolerating the intolerable. Ugliness and outrageous offenses defended by the very people who gave their lives for that right. It really pushes the limits…

The Supreme Court heard the Westboro Church case, and it’s a tough one to reconcile or defend.

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker,” Chief Justice John Roberts wrote for the majority.

At issue was a delicate test between the privacy rights of grieving families and the free speech rights of demonstrators, however disturbing and provocative their message. Several states have attempted to impose specific limits on when and where the church members can protest.

The church, led by pastor Fred Phelps, believes God is punishing the United States for “the sin of homosexuality” through events including soldiers’ deaths. Members have traveled the country shouting at grieving families at funerals and displaying such signs as “Thank God for dead soldiers,” “God blew up the troops” and “AIDS cures fags.”

This seems impossible to defend, each and every time we’re subjected to those signs near a funeral site. Without repeating the slogans they use to taunt media and mourners, suffice it to say they strain credulity and tolerance of speech rights that offend human and religious sensibilities.

Here’s part of Chief Justice John Roberts’ opinion:

“Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible,” he said. However, “As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”


Only Justice Samuel Alito dissented. He said the church’s “outrageous conduct caused petitioner great injury, and the court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered,” he said. “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.”…

John Ellsworth, chairman of Military Families United, said the military protects the First Amendment rights that members of Westboro Baptist use to protest.

“Gold Star families deserve the respect of a grateful nation, not hate from a group who chooses to demonstrate during the funeral of their loved one,” he said. “My family has been on the receiving end of their hate and I assure all Gold Star families, this group is an anomaly and your sacrifice does not go without notice.”

Such an anomaly, it’s hard to report on this one. We have to protect free speech. But if this is what it takes

At least the tension in this case has drawn people of goodwill from different quarters vowing to provide a buffer zone for grieving families.

Freedom is vital, but it does have limits.

‘The State of the Union has degenerated’

CNN photo

CNN photo

The Supreme Court being a usually quietly deliberative body, couldn’t exactly hold press conferences after President Obama made unprecedented (and unpresidential) remarks harshly rebuking the High Court in Obama’s last SOTU address. The most we got was a camera shot of Justice Samuel Alito silently shaking his head and mouthing the words ‘not true’. But now, after due diligence, Chief Justice Roberts is talking, and taking Obama to task.

Chief Justice John G. Roberts Jr. told law students Tuesday that he found it “very troubling” to be surrounded by loudly cheering critics at President Obama’s State of the Union address, saying it was reason enough for the justices not to attend the annual speech to Congress.

“To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we are there,” Roberts said at the University of Alabama School of Law.

Two good points right there. Decorum and protocol are not being followed by this president and this White House. But the justice still hold to theirs, leaving them sitting silently watching and listening to members of Congress stand and cheer and holler in tasteless partisan support of Obama’s undignified swipe at the court.

The White House reportedly responded to Chief Justice Roberts’ remarks. But they really didn’t. 

The White House fired back Tuesday night with a statement that did not address the substance of Roberts’s comments but with another broadside at the court’s decision in Citizens United v. Federal Elections Commission. Press secretary Robert Gibbs accused the court of opening “the floodgates for corporations and special interests to pour money into elections — drowning out the voices of average Americans.”


The quick response by the White House to Roberts’s comments was striking.

The nature of it…par for the course. It seemed we didn’t get the change promised when this president ran as a candidate for office, since Washington has been as bitter and divided as ever. But it’s worse than ‘politics as usual’ when the president dressed down the Supreme Court in such a stately and historical setting.

Roberts commented that the whole process of seating justices on the court these days is broken. 

Roberts also took issue with the Senate’s confirmation process for judges and justices, saying it is contentious and unproductive.

“I think the process is broken down,” he said. “The only people who can change it are the senators. I hope they do.”

Not looking good with this particular class. They’re the ones – at least of the majority party – who constituted the pep rally razzing the justices. The only people who can change that are the voters.