Saturday, June 30, 2012


It will likely be years before we can fully comprehend the significance of the United States Supreme Court decision that was released on June 28, 2012.  To figure out why the court decided as it did, we would have to try to get inside of a few of the brightest minds in our nation.  Most columnists are not up to the task.  Any court decision that does not fit into these writers limited viewpoint of the world is partisan and wrong.
Can I do any better?  I will try.  I’ll try to look at this case from its thousand perspectives.  I will make an effort to state my understanding of this complex matter in around 1500 words.  I will attempt to praise and criticize all sides and not offer the pretense that I fully comprehend every issue.  At the same time, I’m not going to parade around some fake humility and suggest that what I’m writing only comes from the perspective of common sense – rather than actual thought.  I will not wear my ignorance on my sleeve as if it were a badge of honor.
To begin with, the academic record of justices that serve upon the United States Supreme Court is outstanding.  It’s said that Antonin Scalia never received less than an A in any class that he was enrolled in during grade school, high school, college or in law school.  Elena Kagan, President Obama’s most recent appointment, attended school in Princeton, Worcester College, and Oxford, and she graduated magna cum laude from Harvard Law School.  Practically all other justices that have ever served on the court have similar academic credentials.
Some journalists choose to be unimpressed.  Maureen Dowd, for example, recently referred to Justice Samuel Alito as being “insufferable.”  Unwittingly, making such a personal attack likely says more about her inability to formulate her own arguments than about any personality flaws of the justice – which Ms. Dowd probably is in no position to speak about in any case.  Salon Magazine has lately had a field day in lampooning Justice Scalia by first accusing him of having temper tantrums when he doesn’t have his way, and then suggesting that Scalia went into a “bellowing, bullying and bombastic” discourse when recently addressing the court about immigration.  Likely, what Scalia said did not conform with Salon’s editorial opinions.
Many in the press of late seem to, either deliberately or not deliberately, misunderstand what the majority wrote in Citizens United vs. Federal Election Commission, decided March 24, 2009.  President Obama decided to chide the court about how corporations were about to take over all federal elections.  Obama, of course, was trying to make political points, and he had the court at a disadvantage as the justices were sitting in the front row during a State of the Union speech.  In my opinion, what the President suggested likely will never happen since shareholders in corporations have say in how their money is spent, and becoming too outwardly engaged in politics may hurt a company’s reputation.  Besides, with however many trillion dollars is at stake during a Presidential election, it’s impossible to control how or what money will be spent on a campaign in a meaningful or just way.
Anyway, whatever the President said about Citizens United, many in the press decided to deride the case (probably while never reading it) because it made a good sound bite to keep repeating that corporations are not citizens.  This is largely beside the point because the case is actually about free speech.  It’s about my right as an individual citizen to hear whatever speech is out there – be it from a corporation, labor union, special interest group or other individual citizen.  Anyway, justices agreed and disagreed on many different portions of this opinion (as all intelligent individuals have a right to do), and, at least to even the dissenting justices, Citizens United was not so much a partisan case as the press would like to have made it out to be.
This brings us to National Federation of Independent Business vs. Kathleen Sebelius, et al - the case in which the Affordable Care Act (or so-called ObamaCare) was then discussed in front of the Supreme Court bench.  This case had a surprise ending – at least to those individuals that were ready to continue with accusations of the court being made up of partisan members.  For many liberals that actually believe in God, they are now sending prayers of thanks on behalf of the George W. Bush appointee, Chief Justice John Roberts.
Justice Roberts wrote the majority decision for this case, and he held that the Affordable Care Act was constitutional.  President Obama was understandably relieved because the Affordable Care Act has been over and over referred to as his “signature accomplishment.”  However, there are even conservative columnists such as Charles Krauthammer and George Will that are being apologists for the opinion that Justice Roberts wrote.  Such columnists suggest that Roberts’ opinion is the first in almost eighty years that has placed any limitations upon the Commerce Clause in the United States Constitution that provides Congress with the right to regulate interstate commerce. 
The way the court has defined the Commerce Clause has often been criticized by conservatives for simply giving Congress the right to regulate almost anything under the guise of calling it commerce.  However, Justice Roberts opinion suggested that the individual mandate under the Affordable Care Act compelling individuals to actually purchase a product (in this case health insurance) overstepped Congressional authority, and that the Commerce Clause cannot be used to compel people to purchase anything. Anyway, Krauthammer and Will’s opinion notwithstanding, it’s difficult to see how conservatives could be too excited about a theoretical limitation on the Commerce Clause, when the court opinion now has expanded Congressional power under the taxing power provisions of the Constitution (the right to tax and regulate almost on anything as Congress feels fit).
On a side note, President Obama and many supporters of the Affordable Care Act never referred to the funding of this act as being a “tax.”  Politically, everyone now days are trying to avoid using that term because it’s not looked at favorably by many voters.  Mitch McConnell, the Senate Minority Leader for the Republican Party, has already mentioned how Republicans will now hammer Democrats over the head for this by suggesting that the Affordable Care Act would never have been passed at all if the term “tax” had been stated out loud as a funding mechanism, and that the act was therefore passed primarily through deception.  I think most liberals will only view such a criticism as minor.  Most do understand that President Obama’s chance at being reelected in 2012 would have been extremely hampered had the Affordable Care Act been struck down in its entirety by the court.
The court did place another limitation upon Congress that few individuals have noticed.  Under the Affordable Care Act, Congress gave the Secretary of Health and Human Service the right to penalize states that chose not to participate in the expanded Medicaid Program introduced under the act.  This, the court stated, exceeded Congressional authority under the Spending Clause of the Constitution as it did not give states any choice as to whether to accept or reject participation.
So what does it all mean?  Such a decision obviously means that the real future of the Affordable Care Act will likely be decided in the 2012 Presidential, Congressional and United States Senate elections.  If President Obama is reelected, it would be almost impossible to repeal the Affordable Care Act because he will use his veto power over any attempt to do so.  Neither Congress nor the Senate will contain the two-thirds support needed to override any veto.
This may be the only thing we can say with certainty concerning the act.  Even those that voted in support of the act are not aware of all of the provisions that it contains.  As Nancy Pelosi famously stated: “But we have to pass the bill so that you can find out what is in it.”
What’s my own opinion of the matter?  I believe that the passage of the bill was likely the result of an overreach of federal power.  The bill was passed through a revision process – which has never occurred before concerning any major piece of legislation.  It was passed without a single vote of support from the Republican Party – also something that has never occurred since the Republican Party became a major political party. 
Was passage of the act necessary?  Even if it survives in its current form, we won’t know for another twenty or thirty years.  By then, maybe someone will have an idea as to how much money the bill will actually cost, and whether it really will save all of the citizens of the United States – rich and poor alike – any money concerning their healthcare.
Did President Obama do the right thing in pushing passage?  I don’t know.  He’s a politician, he was elected by a liberal base, and he attempted to reform healthcare in a major way, something almost every President has attempted to do since Teddy Roosevelt with little success. I respect the man.  He took on a task that could well have made or broken his Presidency.  And passage still may make or break his legacy.
Finally, there is Justice Roberts.  My feeling is he really would have liked to see the Affordable Health Act struck down.  However, I believe that this was one of those instances where the court may actually have been playing politics.  Justice Roberts presides over the Roberts’ Court.  He might not want his legacy to have been that he decided a case in a manner that could possibly have taken down a President of the United States.  If he had done so, he may have been vilified in many, many history books.
Some people (especially those on the left) might applaud his attempt to save his legacy.  But such an attempt to save one’s legacy may have been at the cost of not doing what one actually believes. 
Maybe the only way we can get anything done anymore in politics is through deception.  Or maybe there are so many considerations that go into getting anything done – including policy implementation, selling it to the public, and concealing what one actually thinks – that it’s impossible to act according to what one actually believes.
There are probably no victors in politics.  We had best look elsewhere for answers rather than blindly devote ourselves to those that we call our leaders.

June 30, 2012

© Robert S. Miller 2012