Thoughts on the health care ruling

[tangaroa]

National Federation v. Sebelius was decided today in an oddly split 1-4-4 decision, with that 1, Chief Justice Roberts, being the majority because the court's left wing choise to join it. My opinions are below the cut.

Roberts's opinion is logically inconsistent. The individual mandate is unlawful to impose but it is lawful for you to be punished for failing to comply with it. This punishment is a penalty which is not a tax -- allowing the case to be heard regardless of the Anti-Injunction Act -- but the same penalty is legal because it is a tax and not a penalty. Roberts cites earlier decisions to say that Congress's power to tax has been limited by the Court before, and he then ultimately declares that the Court cannot review the legality of the tax because it is within Congress's power to tax.

Roberts repeats in his decision the often-mocked but never-refuted argument that the government could theoretically force you to buy broccoli (or any other product) by any standard that allows it to force you to buy health insurance. Good for him. Episodes of mass stupidity need to be confronted directly.

Behind the writing of Ginsberg, the four left-wing judges -- I shall not call them liberal -- cite expansions of federal power "since 1937" to justify expanding federal power further. They propose to ignore the earlier history of Supreme Court precedent and cite decisions made during the shocks of the Great Depression and World War II when popular opinion demanded any action from the government to address the failed economy and then allowed the government full control of society to prosecute the war.

Some consideration of the context is required. To address the Depression, President Franklin Roosevelt began instituting economic plans cobbled from the better ideas of the better-performing Fascist and Socialist economies. Some of these plans were beyond the powers granted to the federal government by the Constitution. The people did not mind since it was a time of panic. The system of government had failed, and the Supreme Court's obedience to the law was seen by Roosevelt and his supporters as a trouble preventing economic progress. To defeat the Supreme Court, Roosevelt proposed increasing its number of members with his own appointees until he had a majority loyal to himself. He would not need to implement this plan, as nature took its course with the Court's older judges.

What happened in 1937 to change the Court's interpretation of the Constitution was FDR's appointment of Hugo Black to replace Willis van Devanter. Van Devanter was one of the capitalist "Four Horsemen" who had opposed even internal state-level regulation of commerce. Black was soon followed by fellow FDR appointees Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, Robert Jackson, and Wiley Rutledge. This was a new majority of appointees of a single President who had previously demonstrated a desire to appoint judges loyal to his agenda rather than the law. War ferver also affected the minds of the judiciary. Among the wartime economic decisions granting the federal government full control of internal state affairs, there was also the Korematsu decision authorizing the jailing of anyone with Japanese ancestry.

This is the origin of what the left wing of today's Court considers precedent. For comparison, Roberts repeatedly cites John Marshall, the Chief Justice of the Supreme Court for three of the first four decades of this court's existence. To resolve conflicts between Marshall and the post-1937 justices, the Court's leftists promise that their political party knows more about the Constitution than those closest to the original writing and interpretation of the law. This is gross legal incompetence unworthy of the Supreme Court. Precedent-upsetting decisions made in an environment of panic and partisanship demand review of their grounds, not blind obedience to them.

Ginsberg produces pages and pages of arguments to support the notion that health care is a good idea in general, as if this should matter in the Court's decision of whether Congress has the legal power to have enacted particular points of a particular law. Throughout her opinion she keeps going back to her personal belief that the law would be beneficial to the people, using this to conclude that it within the powers of Congress listed in the Constitution. By the same standard, a future Court with a right-wing majority could order the leftists to be shot for the good of the Republic.

Where Ginsberg does attempt to address the law, she fails. Her citations of the founders are often taken out of context and are countered by the conservatives with citations of the same people, in context, supporting the conservatives' point of view. Her worst failed attempt at citation is her mangling of the Necessary and Proper clause of the Constitution, in which she ignores the clause's own limitation to "the foregoing Powers, and all other Powers vested by this Constitution" and surrenders to Congress the authority to decide what is necessary and proper. What remains of the clause after these limiting parts of the Constitution are conveniently ignored is that the Congress shall have power to make all laws, and this is the foundation of Ginsberg's opinion. She further says that Congress can force people to buy health insurance because most people will later at some point buy health care services -- whether that is supposed to make sense or not -- and that seeing the local doctor somehow constitutes "interstate commerce".

The opinion of the four conservatives begins even worse, but eventually gets better. They take for granted the current conservative view of federal powers and argue from that without citing anything in their support. This gives us a disturbing look at today's Supreme Court where two teams of four judges each attempt to rule on ideological rather than legal grounds, with only the Chief Justice attempting to follow the law and producing a tangle of illogic instead. The conservatives finally begin a proper argument at around page 18-19 of their dissent, alleging that the mandate to purchase a product is outside the boundaries of the powers alloted to Congress and fundamentally changes the relationship between Congress and the citizenry. Their opinion is logically consistent, which that of Roberts is not; and it is based in law, which that of Ginsberg is not.

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To admit my own bias, I was expecting the individual mandate penalty to be upheld as a capitation tax and was surprised to see Roberts reject that idea, although he upheld it as a tax in general.