Individual Mandate

Obamacare’s despicable, anti-liberty — and therefore anti-American — individual mandate is gone. Well done, Republicans.


13,000 pages of regulations, and they’re not even done yet


With the Supreme Court giving President Obama’s new health care law a green light, federal and state officials are turning to implementation of the law — a lengthy and massive undertaking still in its early stages, but already costing money and expanding the government.

The Health and Human Services Department “was given a billion dollars implementation money,” Republican Rep. Denny Rehberg of Montana said. “That money is gone already on additional bureaucrats and IT programs, computerization for the implementation.”

“Oh boy,” Stan Dorn of the Urban Institute said. “HHS has a huge amount of work to do and the states do, too. There will be new health insurance marketplaces in every state in the country, places you can go online, compare health plans.”

The IRS, Health and Human Services and many other agencies will now write thousands of pages of regulations — an effort well under way:
“There’s already 13,000 pages of regulations, and they’re not even done yet,” Rehberg said.

“It’s a delegation of extensive authority from Congress to the Department of Health and Human Services and a lot of boards and commissions and bureaus throughout the bureaucracy,” Matt Spalding of the Heritage Foundation said. “We counted about 180 or so.”

There has been much focus on the mandate that all Americans obtain health insurance, but analysts say that’s just a small part of the law — covering only a few pages out of the law’s 2700.

“The fact of the matter is the mandate is about two percent of the whole piece of the legislation,” Spalding said. “It’s a minor part.”
Much bigger than the mandate itself are the insurance exchanges that will administer $681 billion in subsidies over 10 years, which will require a lot of new federal workers at the IRS and health department.

“They are asking for several hundred new employees,” Dorn said. “You have rules you need to write and you need lawyers, so there are lots of things you need to do when you are standing up a new enterprise.”

For some, though, the bottom line is clear and troubling: The federal government is about to assume massive new powers.
According to James Capretta of the Ethics and Public Policy Center, federal powers will include designing insurance plans, telling people where they can go for coverage and how much insurers are allowed to charge.

“Really, how doctors and hospitals are supposed to practice medicine,” he said.

The health department is still writing regulations, which can be controversial in and of themselves. One already written, for instance, requires insurance plans to cover contraception. It has been legally challenged by Catholic groups in a case likely to end up in the Supreme Court.
So, there are likely to be many more chapters to go in the saga of Obama’s health care law.


Rallying Cry for Lovers of Liberty

“The law I passed is here to stay”

Barack Obama, Maumee, OH, 2012.07.05

Thank you John Roberts. We now live under a sweeping, transformative, precedence-setting, unconstitutional law — passed by only one political party — because you chose to “legitimize” your court in the eyes of the Left. Apparently you didn’t care that you largely delegitimized your court in the eyes of the Right.

Judicial Betrayal

From Thomas Sowell:

Betrayal is hard to take, whether in our personal lives or in the political life of the nation. Yet there are people in Washington — too often, Republicans — who start living in the Beltway atmosphere and start forgetting those hundreds of millions of Americans beyond the Beltway who trusted them to do right by them, to use their wisdom instead of their cleverness.

The first President Bush epitomized these betrayals when he broke his “read my lips, no new taxes” pledge. He paid the price when he quickly went from high approval ratings as president to someone defeated for reelection by a little-known governor from Arkansas.

Chief Justice John Roberts need fear no such fate, because he has lifetime tenure on the Supreme Court. But conscience can be a more implacable and inescapable punisher — and should be.

The chief justice probably made as good a case as could be made for upholding the constitutionality of Obamacare by defining one of its key features as a “tax.”

The legislation didn’t call it a tax, and Chief Justice Roberts admitted that this might not be the most “natural” reading of the law. But he fell back on the longstanding principle of judicial interpretation that the courts should not declare a law unconstitutional if it can be reasonably read in a way that would make it constitutional, out of “deference” to the legislative branch of government.

But this question, like so many questions in life, is a matter of degree. How far do you bend over backwards to avoid the obvious: that Obamacare was an unprecedented extension of federal power over the lives of 300 million Americans today and of generations yet unborn?
These are the people that Chief Justice Roberts betrayed when he declared constitutional something that is nowhere authorized in the Constitution of the United States.

John Roberts is no doubt a brainy man, and that seems to carry a lot of weight among the intelligentsia — despite glaring lessons from history, showing very brainy men creating everything from absurdities to catastrophes. Few of the great tragedies of history were created by the village idiot, and many by the village genius.

One of the chief justice’s admirers said that when others are playing checkers, he is playing chess. How much consolation that will be as a footnote to the story of the decline of individual freedom in America, and the wrecking of the best medical care in the world, is another story.

There are many speculations as to why Chief Justice Roberts did what he did, some attributing noble and far-sighted reasons, and others attributing petty and short-sighted ones, including personal vanity. But all of that is ultimately irrelevant.

What he did was betray his oath to be faithful to the Constitution of the United States.

Those whom he betrayed in a moment of intellectual inspiration and moral forgetfulness were hundreds of millions of Americans, past, present, and future: whole generations in the past who have fought and died for a freedom that he has put in jeopardy; 300 million Americans today whose lives are to be regimented by Washington bureaucrats; and generations yet unborn who may never know the individual freedoms that their ancestors took for granted.

Some claim that Chief Justice Roberts did what he did to save the Supreme Court as an institution from the wrath — and retaliation — of those in Congress who have been railing against justices who invalidate the laws they have passed. Many in the media and in academia have joined the shrill chorus of those who claim that the Supreme Court does not show proper “deference” to the legislative branch of government.

But what does the Bill of Rights seek to protect the ordinary citizen from? The government! To defer to those who expand government power beyond its constitutional limits is to betray those whose freedom depends on the Bill of Rights.

Similar reasoning was used back in the 1970s to justify the Federal Reserve’s inflationary policies. Otherwise, it was said, Congress would destroy the Fed’s independence, as it can also change the courts’ jurisdiction. But is it better for an institution to undermine its own independence, and freedom along with it, while forfeiting the trust of the people in the process?


Pleasing the Left

To Chief Justice John Roberts, integrity and legitimacy now means pleasing the Left, i.e., upholding any law that expands the power and scope of government.

From William McGurn:

Not once in the 59 pages that constitute Supreme Court Chief Justice John Roberts’s lead opinion in National Federation of Independent Business v. Sebelius does he use the word “integrity.” Even so, in the days since the individual mandate was upheld as a tax, concern for the “integrity” or “legitimacy” or “reputation” of the Roberts Court has become the most accepted explanation for why the chief justice ruled as he did.

Thus Reuters, which tells us that Justice Roberts was “trying to preserve the integrity of the judiciary in polarized Washington.” Or the New York Times, where Tom Friedman lauds the chief justice for “a simple noble leadership impulse at a critical juncture in our history—to preserve the legitimacy of the Supreme Court.” The Washington Post’s Charles Krauthammer agrees with this motivation, speculating that had Justice Roberts “been just an associate justice, and not the chief” he might well have voted otherwise.

If Mr. Krauthammer is correct, it raises a disquieting question. During Justice Roberts’s confirmation hearings back in 2005, he described judges as umpires whose job it is to call balls and strikes as he sees them. The idea that he might have voted otherwise if he were not chief justice suggests that a “strike” was changed to a “ball” because of concerns for how the straight call would be perceived.

Let us stipulate that there’s nothing wrong with a justice who starts out with one opinion but changes his mind as he reviews the facts and arguments. Let us agree too that the reputation of the court is a legitimate concern of any justice. The fundamental difficulty remains: a labored lead opinion that looks like a conclusion struggling for a rationale.


It’s also hard not to notice that people now extolling Justice Roberts for rescuing the court’s integrity are largely the same ones who have been impugning it. That’s especially true of the White House, which had made plain that if the Supreme Court had gone the other way on health care, the Roberts Court would become a major target of Obama’s re-election campaign. The chief justice knows how ugly that might be, having sat through the president’s crass political attack on his court during the 2010 State of the Union address.

As more than one conservative has pointed out, the integrity of liberal justices who reliably line up for whatever outcome is desired by the Democratic Party goes unquestioned. Indeed, the definition of integrity assumes one direction. For example, the one notable occasion when the Supreme Court specifically invoked integrity was back in 1992 (Planned Parenthood v. Casey), when the court used it to justify reaffirming Roe v. Wade’s conclusion—a constitutional right to abortion—while rejecting the reasoning that led to it.

Granted, in that case the court was deferring to a previous judicial power grab and not to the people acting through their elected representatives. Still, Associate Justice Antonin Scalia’s clarifying rebuke is well worth reprising here: “Instead of engaging in the hopeless task of predicting public perception—a job not for lawyers but for political campaign managers—the Justices should do what is legally right.”

Justice Scalia’s dissent in Casey illuminates a political handicap imposed on conservatives by their own principles. Whereas the liberal belief in a living Constitution allows them to stretch its limits to justify almost any desired outcome, conservatives believe the Constitution imposes real limits. The chief justice’s tax argument rankles because no one else in America is buying it: certainly not the conservative dissenters, who firmly reject it, nor the court liberals, who appear to have winked because it gave them the outcome they wanted.

The day after the ruling came down, this newspaper carried an article that explained Justice Roberts’s decision this way: “By confounding charges that the court is too partisan, the chief justice might have earned sufficient political capital to move to the right during the next term, when the court will likely confront a host of hot-button issues, including affirmative action, gay marriage and the continued vitality of the Voting Rights Act.”

If earning “sufficient political capital” is simply a consequence of his ruling, Justice Roberts cannot be blamed. If it was the aim, however, and it led to his voting as chief justice in a way he would not have voted as an associate justice, he has raised rather than resolved questions about the integrity of the Roberts court.


Turned Tail and Ran

The Zero’s dishonorable public humiliation of the Supreme Court worked on Chief Justice John Roberts.

From Michael Walsh:

The Right needs to stop kidding itself that last week’s epic Dolchstoss amounts to anything but a loss: a loss to the country, a loss to the court’s apolitical reputation, and a personal loss for the chief justice, whose legacy now seems permanently sullied. From CBS News:

Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

“He was relentless,” one source said of Kennedy’s efforts. “He was very engaged in this.”

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, “You’re on your own.”

Spare me the argument that Roberts, with the ghosts of 1937 tramping through his mind, was trying to “preserve the integrity” of the court. His jaw-dropping, intellectually inconsistent, Kafkaesque ruling in the Obamacare case is likely to live in infamy, much like such earlier Supreme turkeys as the Dred Scott decision and Plessy v. Ferguson. In both of those cases, as in this one, the Court took refuge in legal niceties and sophomoric hairsplitting, refusing to acknowledge the greater moral issue and the looming national catastrophe.

Even if Roberts did make his “switch in time” pusillanimously, to avoid another Obama tongue-lashing and the ill will of the major editorial pages . . . so what? There are times in the affairs of men when business as usual should no longer obtain, and all right-thinking people (including the four justices who voted to strike down the monstrosity) must simply — in one of the Left’s favorite phrases — do the right thing. That Roberts did not will be to his everlasting shame.

Further, it’s not like it won him any good will or Strange New Respect, either from his poisonous colleagues (read Ruth Bader Ginsburg’s classic dog-in-the-manager “concurrence”; her shiv-between-the-ribs citation of Romneycare was also a nice touch) or from the New York Times, which thanked him thus:

Six full terms after Justice Samuel Alito Jr. joined the court, the five in the majority have redefined judicial conservatism. The contrast in style and philosophy with the moderate minority is pronounced, including the conservatives’ willingness to flout court rules, constraints of precedent and well-established practices of legal reasoning to reach results they seek.

It is no wonder that the court’s standing in public opinion polls is at its lowest level in a quarter of a century, with just one in eight Americans believing that the justices decide cases based only on legal analysis.

Justice Elena Kagan said last month, dissenting in the crime lab evidence case, that the conservative majority sometimes forsakes “precedent-based decision making,” which guides lower court judges and provides predictability in the justice system. The court reached the right result on the Affordable Care Act, but that ruling was not a sign of change in a strident conservative majority.

You have to love that “moderate minority” phrase, too.

But this is how the Left sees itself — eminently, moderately reasonable, and only driven to extreme “by any means necessary” measures by the intransigence of the Right and for its effrontery in trying to oppose “progress” as they define it.

Until the Right understands that the Left cedes us — as the Times editorial so vividly illustrates — no legitimacy at all it will continue to be surprised by weak men like John Roberts, who allowed a rogue president to publicly browbeat him and the institution he heads — and then, when he had a chance to pay him back, turned tail and ran.

As Kafka wrote in “Zur Frage der Gesteze”: “Was der Adel tut, ist Gesetz” (“Whatever the nobility does is the law.”) So start acting accordingly.