SCOTUS Rules Trump Cannot End DACA

The Supreme Court has ruled that President Trump cannot unilaterally end the Deferred Action for Childhood Arrivals program begun by President Obama. President Trump had sought to use his executive authority to end the program which exercised “prosecutorial discretion” in delaying deportation of illegal immigrants who arrived as children and met certain other requirements. An obvious question is how the Supreme Court could overrule an executive decision to end a program that had its origins in another executive decision.

The answer lies in the Administrative Procedures Act. This is the same federal law that tripped up the Trump Administration’s attempt to add a citizenship question to the census last year. Readers may recall that the requires courts to strike down government actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Today’s decision was written by Chief Justice Roberts and joined in full by Justices Ginsburg, Breyer, and Kagan. Justice Sotomayor joined in all but Part IV of the opinion, which yielded a 5-4 decision against the president.

The ruling stemmed from the fact that Elaine Duke, former United States Deputy Secretary of Homeland Security at the time of Trump’s decision to end DACA, and former Secretary of Homeland Security Kirstjen Nielson provided inconsistent and incomplete explanations of why the DACA rule was being rescinded.

Writing for the Court, Roberts explained, “Duke treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation. That reasoning repeated the error in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm— treating a rationale that applied to only part of a policy as sufficient to rescind the entire policy.”

“In failing to consider the option to retain deferred action, Duke ‘failed to supply the requisite ‘reasoned analysis,’”Roberts further explains.

The Court also found that Duke failed to determine whether there was “‘legitimate reliance’ on the DACA Memorandum.”

“DHS has flexibility in addressing any reliance interests and could have considered various accommodations,” Roberts explained for the Court. “While the agency was not required to pursue these accommodations, it was required to assess the existence and strength of any reliance interests, and weigh them against competing policy concerns.”

Roberts added that Nielson’s explanations for the rescission added “several new justifications” to the rescission while taking no new actions. The Court determined that since no additional steps were taken, Nielson “was limited to elaborating on the agency’s original reasons. But her reasoning bears little relationship to that of her predecessor and consists primarily of impermissible ‘post hoc rationalization.’”

The Court found that Duke’s two errors were “arbitrary and capricious” and thus were in violation of the Administrative Procedures Act.

In Part IV of the ruling, the majority less Sotomayor found that “respondents’ claims fail to establish a plausible inference that the rescission was motivated by animus in violation of the equal protection guarantee of the Fifth Amendment.”

“The appropriate recourse is therefore to remand to DHS so that it may reconsider the problem anew,” Roberts wrote.

Justice Thomas filed an opinion that concurred in part and dissented in part. This opinion was joined by Justices Alito and Gorsuch. Justices Alito and Kavanaugh also wrote opinions that both dissented and concurred in part.

The conservative wing of the Court took issue with the majority opinion that DHS should try again. Alito wrote, “The Court still does not resolve the question of DACA’s rescission. Instead, it tells the Department of Homeland Security to go back and try again.”

Thomas attacked DACA’s legal status, writing, “No party disputes that the immigration statutes lack an express delegation to accomplish either result. And, an examination of the highly reticulated immigration regime makes clear that DHS has no implicit discretion to create new classes of lawful presence or to grant relief from removal out of whole cloth. Accordingly, DACA is substantively unlawful.”

“This conclusion should begin and end our review,” Thomas continued, adding, “The majority’s contrary holding—that an agency is not only permitted, but required, to continue an ultra vires action—has no basis in law.”

“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote. “The Court could have made clear that the solution respondents seek must come from the Legislative Branch.”

Originally published on The Resurgent

President Obama admits that Voter ID is not voter suppression

President Obama admitted to the nation on Tuesday that controversial voter ID laws do not suppress the minority vote. The president, speaking in a radio interview, said that the primary reason that minority voters stay away from the polls was apathy.

Speaking on “Keeping It Real” with Al Sharpton, President Obama admitted, “Most of these laws are not preventing the overwhelming majority of folks who don't vote from voting. Most people do have an ID. Most people do have a driver's license. Most people can get to the polls. It may not be as convenient; it may be a little more difficult. There may be a few people who are impeded.”

The Justice Department, led by Obama appointee Eric Holder, had argued precisely the opposite. In challenges to numerous state voter ID laws, the government had argued that the laws were unfair to minority voters and liberals charged that they were an attempt to suppress black voters, who traditionally support Democrats.

Obama’s admission comes in the wake of the recent Supreme Court decision upholding the new Texas voter ID law for this year’s midterm elections. In addition to a battle for control of the U.S. Senate, the election in Texas features a heated gubernatorial race between Republican Greg Abbott and Wendy Davis, a rising star of the Democratic Party.

In the same interview, Obama answered Sharpton’s query about people who were worried about the reliability of vulnerable Democrats. “Here’s the bottom line,” Obama said, “We’ve got a tough map. A lot of the states that are contested this time are states that I didn’t win. So some of the candidates there, it’s difficult for them to have me in the state because the Republicans will use that to try to fan Republican turnout. The bottom line though is these are all folks who vote with me, they have supported my agenda in Congress….” The president continued, “They are the right side of minimum wage, they are on the right side of fair pay, they are on the right side of rebuilding our infrastructure, they are on the right side of early childhood education. So this isn’t about my feelings being hurt. These are folks who are strong allies and supporters of me and I tell them, you do what you need to win….”

Voter ID laws have generally been upheld by the Supreme Court. According to Ballotpedia, 19 states, including Georgia, now have laws on the books requiring voters to present photo identification.

Read the full article on Examiner.com

What you need to know about Hobby Lobby and the Religious Freedom Restoration Act

This week’s Hobby Lobby decision has brought the Religious Freedom Restoration Act, a law that most people never knew existed, into the spotlight. The decision, in which the Supreme Court ruled that Hobby Lobby could not be required to provide its employees with health insurance that covered abortifacient drugs, hinged on the obscure 1993 law.

In contrast with the thousands of pages of the Affordable Care Act, the Religious Freedom Restoration Act (RFRA) is only three pages. In spite of the fact that it is the political left that is now voicing strong opposition to the law, it was passed with the bipartisan support of a Democratic congressional majority and signed into law by a Democratic president.

In the 1980s, several cases involving the religious beliefs of American Indians were decided in which the Supreme Court ruled for the government. The Court held that Native Americans could not prevent a road from being cut through sacred lands (Lyng v. Northwest Indian Cemetery Protective Association) and that the use of peyote in religious worship could be prohibited under state law (Employment Division v. Smith). Public opinion was against the Court in these cases, which disregarded the Sherbert Test.

The First Amendment to the Constitution guarantees Congress shall not prohibit the free exercise of religion. According to NPR, legal exemptions for religious believers go back to the founding era of the United States. One well known example involves deferments from military service for conscientious objectors.

In 1963, the Supreme Court clarified this right in Sherbert v. Verner. The Sherbert Test is used to determine whether a person’s right to the free exercise of religion has been violated. First, the court must determine whether the person has a sincere religious belief and whether the governmental action places a substantial burden on the person’s ability to act on that belief. If the plaintiff passes the first two tests, the court must then determine whether there is a “compelling state interest” and whether the governmental action is applied in the least burdensome manner to the religious beliefs.

The RFRA was enacted in the wake of the Native American religious cases to codify the traditional Sherbert Test. According to Govtrack, the bill was sponsored by Rep. Chuck Schumer (D-N.Y.) and signed into law by President Bill Clinton on Nov. 16, 1993. An identical Senate version of the bill was introduced by Ted Kennedy (D-Mass.). The bill passed the House by a unanimous voice vote. Only three senators voted against the bill. They were Jesse Helms (R-N.C.), Harlan Mathews (D-Tenn.), and Robert Byrd (D-W.V.).

The entire text of the RFRA can be read in a matter of minutes. The core of the law is Section 3 which stipulates that the “Government shall not burden a person's exercise of religion even if the burden results from a rule of general applicability” unless the government demonstrates that the burden “furthers a compelling governmental interest” and “is the least restrictive means of furthering that compelling governmental interest.” In the Hobby Lobby case, it was the second test, that of being “least restrictive,” that the Obamacare mandate failed.

In 1997, the Supreme Court ruled that the RFRA was unconstitutional when applied to the states (City of Boerne v. Flores). As a result, some states have enacted their own religious freedom statutes into state law.

In the majority opinion, Justice Samuel Alito notes that under the federal Dictionary Act, a corporation is treated as a person unless Congress specifies otherwise in a specific law. The RFRA contains no such exception. “The plain terms of RFRA,” he writes, “make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.”

Alito assumes but does not rule that the government has a compelling interest to provide “cost-free access” to contraceptives. It is not necessary to test whether the interest was compelling because the mandate failed the test of the being the “least restrictive” method. This is because the government had already implemented an alternative system for religious nonprofit groups. The mandate could not be the least restrictive method if a less restrictive, alternative method was already in existence.

In contrast to many claims from the left, the ruling does not allow bosses to control the bodies of female employees. Nor does it ban contraceptives or allow corporations to prohibit their employees from using them. It merely holds that the government must allow a religious accommodation for companies that are opposed to providing abortion-inducing drugs.

Alito also writes, “This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.”

“We do not hold, as the principal dissent (Ginsburg’s opinion) alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs,’” Alito continues. “Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose ‘disadvantages . . . on others’ or that require ‘the general public [to] pick up the tab.’”

Anticipating the objections from the left that the ruling will harm women, Alito points out that the effect of the legally required accommodation “on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing” just as women who currently work at religious nonprofits have cost-free access to abortion-inducing drugs and traditional contraceptives.

In the final analysis, the case was not about the availability of contraceptives, or even abortifacient, drugs. It was about who pays for them and the power of government to compel Americans to violate their religious beliefs.

 

Read the full article on National Elections Examiner

Oklahoma lawsuit may deal Obamacare ‘fatal blow’

The Supreme Court upheld the constitutionality of the individual mandate in 2012, but now another lawsuit is challenging the Affordable Care Act on different grounds. The new lawsuit, brought by the State of Oklahoma, has its roots in a legal paper by Jonathan Adler, a professor at Case Western Reserve University, and Michael Cannon, director of health policy studies at the Cato Institute. The paper, “Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA,” argues that, according to the language in the law, Obamacare’s health insurance subsidies can only be applied to state exchanges, not exchanges set up by the federal government.

As Dick Morris explained in The Hill on Oct. 8, Section 1311 of the ACA establishes state health insurance exchanges. Section 1401 stipulates that refundable tax credits, the subsidies, are available only for health insurance purchased in Section 1311 exchanges, those set up by the states. Morris argues that the intent of Congress was to establish subsidies as an incentive for states to set up their own exchanges.

Only 16 states and the District of Columbia elected to form state health exchanges in spite of the promise of subsidies. One of these states, Oklahoma, filed suit in Pruitt v. Sebelius, challenging an IRS ruling that extended both the individual and employer mandates to all states according to lawyers.com. The suit claims that the employer mandate to provide health insurance to employees or pay a fine should not apply to states that did not set up their own health insurance exchanges. It also challenges the subsidies.

Although filed in 2011, a stay was issued until the Supreme Court ruled on the constitutionality of the Affordable Care Act. The federal government moved to dismiss the lawsuit after the stay was lifted, but a federal judge let stand the complaints against the employer mandate and subsidy. The court also ruled that the State of Oklahoma has standing in the suit as a large employer. The case is currently pending before the Eastern District United States Court of Oklahoma.

If the court eventually sides with Oklahoma, John Goodman of the National Center for Policy Analysis argues that it would be a “fatal blow” to Obamacare. “With so many states declining to set up exchanges,” he says, “Obamacare will be a disastrous failure if the courts agree with them.”

A victory for Oklahoma would also likely apply to other states, such as Georgia, that decided not to set up their own health exchange. As reported by Examiner, Governor Nathan Deal announced Georgia’s decision not to create an exchange in November 2012.

If the courts rule that the employer mandate and insurance subsidies do not apply in states with federal exchanges, it would destroy the delicate balance of the law in those states. Employers would not be fined if they declined to provide coverage for their employees. While the mandates for Obamacare’s “essential health benefits” would still apply in all states, subsidies would not be allowed in states with federal exchanges, making the cost of insurance prohibitively expensive.

While a court decision would not strike down the Affordable Care Act immediately, it would render the health law virtually nonexistent for employers in a majority of the country. While the individual mandate and fines would still apply, the lack of subsidies would mean that more people and companies would choose to opt out of purchasing insurance and the risk pool would shrink. Obamacare depends on young people buying expensive insurance to subsidize older and less healthy people.

If young, healthy people opt to pay the fine and employers choose not to provide health insurance, Obamacare will likely collapse under its own weight in short order. With Republicans controlling the House of Representatives, a new health care fix would require a bipartisan agreement, unlike when Obamacare was passed in 2010 with Democratic majorities in both houses and no Republican votes.

It seems as though Congress should have actually read the bill before they passed it.

Originally published on Elections Examiner

No SCOTUS bump for Obama

There had been speculation that the Supreme Court’s ruling upholding President Obama’s health insurance law might result in a bump in the polls for the president. Two weeks after the Court’s landmark ruling, it is now apparent that it did not help the president politically in any last way.

On June 28 when the Court revealed its ruling to the public, President Obama’s Rasmussen approval index stood at -20. The index did climb to a high of -12 on July 7, but has since settled back to -18. This means that President Obama’s disapproval is 18 percentage points higher than his approval.

There was the possibility that the Supreme Court ruling would change some minds on the health care law. The opinion of the Supreme Court might sway some voters to believe that the law was not so bad or unconstitutional after all. Instead, Rasmussen’s health law poll shows that 53 percent still favor repeal while 41 percent are opposed. This is statistically unchanged from before the ruling and for the last several months.

Rasmussen’s new presidential tracking poll, released today, shows Mitt Romney leading the president 47-44. On the issues, the poll notes that voters favor an extension of the low Bush-era tax rates, but are split on whether the rates should be extended or raised for higher income taxpayers. By two-to-one, Americans believe that the country is already overtaxed and most feel that raising taxes will hurt the economy. Forty-nine percent believe that 30 percent should be the highest tax rate for federal, state and local governments combined. The highest tax rate is already 35 percent for federal income taxes alone. It will rise to 39.6 percent if the Bush tax rates are not extended. In contrast to Obama’s policies, 66 percent believe that the government should cut spending.

According to the Real Clear Politics average of polls, Obama has a 1.5 point lead nationally. Looking closer, this reflects a number of older polls. In the four polls from July, Romney leads in two, Obama in one, and one is a tie. More importantly, Romney won both polls that featured likely voters with an average of a two point lead.

In the swing states, Obama leads handily in New Hampshire and Pennsylvania according to Real Clear Politics. Obama also leads by a smaller amount in Colorado, Iowa, and Wisconsin. These polls were all taken prior to the Supreme Court ruling and most used registered voters, however. In Michigan, Obama leads by less than two points in pre-ruling polls. In several polls of likely voters, Romney leads or is virtually tied with the president.

Mitt Romney leads in North Carolina and Missouri. In the most recent Missouri poll, taken in early June, Romney led by seven points. In North Carolina the race is much closer. Real Clear Politics credits Romney with an average lead of just over one point. In the two post-ruling polls, Obama led in one poll by one point while Romney led in another by five points. Both polls used registered voters.

In Florida the race is too close to call. Two July polls of likely voters are split. Romney and Obama each won one of the polls by one point. In Ohio, Obama won two June polls of registered voters handily, but Romney won two earlier polls of likely voters. In Virginia, Obama won a July poll of registered voters by eight points, but Romney won the previous poll of likely voters by five points.

More bad news for Obama is that a poll by The Hill reveals that 68 percent of likely voters believe that Obama has “substantially transformed” the country since he became president. The bad news is that by a margin of 56-35 percent they believe that he has changed the county in a negative way. Similarly, only 30 percent in Rasmussen’s Right Track-Wrong Track poll said that the country was headed in the right direction.

To some extent Obama is performing remarkably well in the polls. In spite of a poor economy, a plurality of voters who feel that he has led the country in the wrong direction, and a signature law that is very unpopular, Obama is holding nearly even with Mitt Romney in national and swing state polls. This would seem to indicate that, while voters are not happy with Obama, they are not yet sold on Romney.

The downside for Obama is that after three in office, people know him and what he stands for. If people don’t support Obama already, they are unlikely to. For this reason, blogger and political strategist Dick Morris holds that undecided voters usually turn against the incumbent. This means that Obama’s percentage of the vote is unlikely to increase, while Mitt Romney is likely to add to his score on Election Day.

More good news for Romney is that Republican fundraising has been going extremely well. According to the Christian Science Monitor, Romney’s fundraising outpaced Obama’s in June. According to CNN, the Romney campaign said that it had earned well over a million dollars from more than 47,000 contributors in the first 24 hours after the Supreme Court decision. The money advantage will help Romney to get his message to the voters as well as to help him put President Obama on the defensive in swing states.

Read this article on Examiner.com:
http://www.examiner.com/article/no-scotus-bump-for-obama

Happy Government Dependence Day

This is the most dismal Independence Day in memory.

I’m sure that there have been more dreary Fourths of July in our nation’s history. The first few were under British rule and it seemed that the young nation might not survive to celebrate the anniversary of its birth in peace. In 1826, two American heroes, Thomas Jefferson and John Adams both died on July 4. In 1863, although most Americans did not know it yet, almost 8,000 Americans had just died in battle at Gettysburg. In 1942, Pearl Harbor was a recent memory but the American victory at Midway had lessened the sting of the surprise attack. On several Independence Days it seemed that the country might not be around to celebrate another.

There have been other Independence Days when the celebrations must have felt hollow. Rarely has that been due to the actions of our own government, however.

This year the celebrations come less than a week after the Supreme Court upheld the largest expansion of federal power since the New Deal. The federal government exercised unprecedented control over every American citizen and almost 20 percent of the U.S. economy. The founders, proponents of weak and limited central government, are undoubtedly spinning in their graves.

The passage of the health care law was a betrayal on many levels. Most obviously, the Democrats who voted for the bill betrayed their constituents. A strong majority opposed the bill when it was passed. Rather than persuading people to support their legislation, the Democrats, led by an elitist minority, rammed the bill through Congress using the parliamentary trick of budget reconciliation to avoid a Republican filibuster. They betrayed their oath of office by passing a law that was clearly unconstitutional (Chief Justice Roberts’ opinion notwithstanding).

The Democrats also betrayed the ideals of the founders of the United States. The founder of their own party, Thomas Jefferson said, “A wise and frugal Government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circlue of our felicities.”

Jefferson would have been appalled at Obamacare, which is the antithesis of his goals for America. Our government, $17 trillion in debt, cannot be called frugal. It is increasingly involved in even the most trivial aspects of our lives. It takes bread from the mouths of labor to give to those who do not work. By Jefferson’s definition, our government is not good.

Jefferson, who authored the Virginia Act for Establishing Religious Freedom would oppose the government forcing religious groups and believers to purchase contraceptive and abortifacient drugs. He would likely oppose abortion, having penned the phrase “right to life” in the Declaration of Independence. He would also oppose the attempts to silence those oppose abortion and same-sex marriage. “No man,” Jefferson wrote, shall “suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.”

As the author of the Declaration of Independence, Jefferson would rebuke the authoritarian tendencies of our current president, a man who is only too willing to circumvent the will of the people and their elected representatives in Congress by legislating with federal agencies and Executive Orders. The Revolutionary War was fought to rid Americans of a king. Jefferson would not want a president who acts like one.

Jefferson, who warned that “the banks and corporations that will grow up around [the banks] will deprive the people of all property until their children wake-up homeless on the continent their fathers conquered,” would be angry at the collusion between government and business that birthed Obamacare. Democrats in Congress attacked insurance and pharmaceutical companies as profiteers in the media, but secretly worked with them to craft and pass the bill. The loser in this “crony capitalism” is the American people.

The courts, whose judges swear to “faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution” “without respect to persons, and do equal right to the poor and to the rich,” ignored critical aspects of the Constitution, U.S. law, and American history. Justice Roberts rewrote the ACA and changed the mandate from a penalty to a tax. Thomas Jefferson would say, “Taxation without representation is tyranny!”

Much has been written about the failings of Obamacare, how it will result in a lower quality of health care in the United States, higher prices, and, ultimately, shortages and rationing. Economically, all of these outcomes are extremely likely.

Perhaps more importantly, however, Obamacare might be the undoing of the entire country. For a nation with $17 trillion in debt and a debt-to-GDP ratio that is greater than 100 percent, the last thing that is needed is another multi-trillion dollar entitlement, complete with tax increases, that will suck money out of the private sector and further slow growth. Even worse, the mounting debt load brings the nation even closer to a complete financial collapse.

As the Democrats systematically destroy the aspects of this country that made it great, the current economic morass is increasingly likely to indeed be the “new normal.” Emulating Europe’s welfare state means that the U.S. will also have Europe’s chronically high unemployment, lower income and wages, higher poverty, slower growth, and higher taxes.

By financing entitlements with debt to be repaid in the future, we are mortgaging our children’s lives and making them slaves to the countries and corporations that buy our debt. We are selling their future just as surely as if we blew their inheritance in the casinos of Las Vegas. In the end there will be nothing left: No money and nothing to show for it. We are impoverishing ourselves. As Rep. Paul Ryan said, “This is the most predictable crisis we have ever had.”

The Democrats have no solution to the crisis. Their only answer is to spend more and hope the economy recovers. Most do not even acknowledge the problem.

Lest anyone accuse me of favoritism, the Republicans have contributed to the problem as well. The Republican spending spree under George W. Bush was exceeded only by that of Barack Obama and Franklin Roosevelt. Republicans expanded government through the Medicare prescription drug entitlement (which at least did consider market realities) and the No Child Left Behind Act. On the plus side, the Republicans may have learned their lesson.

The Republicans are our last hope in government. We have already been failed by one political party that is now ideologically closer to Marx and Engels than Washington, Jefferson, Hamilton, and Madison. We have been failed by the president and failed by Congress. We have been failed by the courts, all the way up to the Supreme Court. Some Catholics already see the need for civil disobedience in resisting Obamacare’s anti-religious mandates. If Republicans are elected and fail to change the direction of the country, civil disobedience will be our only recourse.

As Abraham Lincoln said, “We shall nobly save, or meanly lose, the last best hope of earth.” America isn’t dead, but she is critically ill. It is up to the people to save her.

This Independence Day, let us vow that it will be our last Government Dependence Day.

Taxation without representation: Why Roberts was wrong

Chief Justice John Roberts was wrong in his ruling on Obamacare. The ruling, which left the majority of the Patient Protection and Affordable Care Act in place, was based on Robert’s view that the much maligned individual mandate was a tax. His reasoning regarding the mandate is assailed by the conservative wing of the Court, but, even if he were correct on this issue, the entire law still should have been ruled unconstitutional.

If the mandate is actually a tax, then the Anti-Injunction Act should apply. This 1793 law provides that no one has standing to sue over a tax until they have actually paid the tax. Yet Chief Justice Roberts’ ruling holds that the Act does not apply because “Congress did not intend the payment to be treated as a ‘tax….’”

Roberts explicitly states that Congress did not intend for the individual mandate to be a tax, yet he found that it was constitutional because it was a tax. If Congress had passed a tax law, it would have been constitutional, but this is not what Congress did. Chief Justice Roberts had to rewrite the law, transforming a “penalty” into a “tax,” to find it constitutional. The ruling is an example of judicial activism.

Roberts explains his ruling by saying that the mandate does provide revenue for the government. He then explains that while Congress’ choice of wording, “penalty” vs. “tax,” controls the applicability of the Anti-Injunction Act, it does not affect the constitutional question of whether Congress may mandate the payment. In Roberts’ view, because the only consequence of failing to buy health insurance is a payment to the IRS, the payment is a tax regardless of how Congress labeled it.

Roberts did better on other points of the ruling. Liberals had pointed to Congress’ power to regulate interstate commerce as authority to regulate inactivity that affects commerce as well. The majority rejected this view: “The language of the Constitution reflects the natu­ral understanding that the power to regulate assumes there is already something to be regulated.”

Roberts continues, “The individual mandate, however, does not regulate existing commercial activity. It instead compels individ­uals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Con­gress to regulate individuals precisely because they are doing nothing would open a new and potentially vast do­main to congressional authority.”

Similarly, the Necessary and Proper Clause did not justify the mandate because it was not “consistent with the letter and spirit of the Constitution.” Congress must use means that are within its enumerated powers.

Finally, the majority also put the brakes on Congress’ use of federal money to coerce the states. The ruling notes that, “The Constitution simply does not give Congress the authority to require the States to regulate.” Congress must give the states a real choice without threatening to cut off other funding. Congress can attach conditions to funds, but not threaten to suspend other payments to states as a “means of pressuring the States to accept policy changes.” Roberts specifically states, “What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.”

Roberts took flack from both wings of the Court over his opinion. Justice Ginsburg’s dissenting concurrence is strongly worded. Her opinion boils down to one line: “Whatever one thinks of the policy decision Congress made, it was Congress’ prerogative to make it.” Unsurprisingly, Ginsburg (as well as the other three liberals on the Court) would have affirmed the law under the Commerce and Necessary and Proper Clauses. She writes, “We presume the statute under review is constitutional and may strike it down only on a ‘plain showing’ that Congress acted irrationally.” This view sets a very low standard by looking at not whether the law is allowed by the Constitution, she presumes it is, but whether Congress’ actions were reasonable in her eyes.

Ginsburg is particularly vehement in her rebuttal to the majority opinion that Congress may not regulate inactivity as a form of commerce. She explicitly states her support for “[t]he proposition that Congress may dictate the conduct of an individual today because of prophesied future activity” and that “Nothing in this language [the Commerce Clause] implies that Congress’ commerce power is limited to regulating those actively engaged in commercial transactions.” To Ginsburg and the liberals, the Commerce Clause is a blank check for Congress.

The four conservative justices, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Antonin Scalia , jointly dissented against Roberts’ ruling. The four agreed that Congress could not mandate the creation of commerce in order to regulate it under the Commerce Clause. They also agreed that “the scope of the Necessary and Proper Clause is exceeded not only when the congressional action directly violates the sovereignty of the States but also when it violates the background principle of enumerated (and hence limited) federal power.” They agreed that the Medicare mandate was unconstitutionally coercive as well.

On the tax argument, however, the four disagree with Roberts, stating, “In all our cases the two [taxes and penalties] are mutually exclusive. The provi­sion challenged under the Constitution is either a penalty or else a tax.” The dissent continues, “We know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both.” According to the dissent, case law defines both terms: “A tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.”

Taking a strident tone, the dissent says, “We have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.” The most damning piece of evidence that the dissenters present, “the nail in the coffin,” is that the “mandate and pen­alty are located in Title I of the Act, its operative core, rather than where a tax would be found—in Title IX, containing the Act’s ‘Revenue Provisions.’”

Quoting more case law, the dissenters say, “’Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .’ or judicially rewriting it.” Yet the dissenters note that this is exactly what the Court does in the majority opinion:

The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanc­tion of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available. The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions….

In the view of the four dissenters, since Congress did not write a severability clause into the law, the correct ruling would have been to strike down the entire law. This would be true even if the majority had only agreed that the coercive nature of the Medicare mandate to the states was unconstitutional. Severability clauses are usually inserted into legislation to stipulate that if one part of the law is found unconstitutional, the rest should remain in force.

Essentially Chief Justice Roberts has turned back the clock to 1765 and the Stamp Act. Our forefathers rejected this tax with the cry of “No taxation without representation!” Ironically, in 2012 we are again faced with taxation without representation. Chief Justice John Roberts, an appointed judge, has created a new tax that contravenes the will of Congress and the people. He also sets the disturbing precedent that under the taxing power of Congress almost anything, including inactivity, is subject to coercive taxes.

The Wall Street Journal quotes Justice Benjamin Cardozo who once said of judicial rulings that, “What is good in it endures. What is erroneous is pretty sure to perish.” In this week’s ruling, the new limits on federal power deserve to endure. The opinion of Justices Roberts and Ginsburg that Congress has the power to coerce its citizens through taxing practically anything, including inactivity, should perish. So should Obamacare.

 

Read this article on Examiner.com:

http://www.examiner.com/article/taxation-without-representation-why-roberts-ruling-was-wrong

SCOTUS ruling not the end for Obamacare opponents

President Obama finally got some good news today.

The Supreme Court, in a 5-4 decision, upheld most of the Affordable Care Act, including the individual mandate, today. In a stunning proof that judicial activism can cross ideological lines, Chief Justice John Roberts joined the Court’s liberals in finding that the individual mandate is constitutional under Congress’ authority to tax.

There was some good news for those who oppose Obamacare as well according to a Wall Street Journal analysis. The Court decided that the federal government could not expel states from Medicare if they refuse to comply with the law. The Court also limited abuse of Commerce Clause by stating that the Affordable Care Act was not permitted by Congress’ power to regulate interstate commerce.

Following the Battle of Bunker Hill, British General Sir Henry Clinton wrote that it was “A dear bought victory, another such would have ruined us." The same is likely true for President Obama of today’s victory.

Obamacare was not popular before it passed. It took parliamentary tricks and bribery to pass the law over strong public opposition, even with large Democratic majorities in both houses of Congress. The Cornhusker Compromise and the Louisiana Purchase will long be remembered with scorn. The deal that pro-life Democrats won from President Obama to keep federal money from funding abortion has already been forgotten as new mandates force all insurers to cover abortifacient drugs. Many Democrats who voted for the law are no longer in Congress due their violation of the public trust. Next January, there will be even fewer.

Obamacare is still not popular. Immediately after passage 55 percent of Americans favored its repeal according to Rasmussen. Forty-two percent were opposed. Last week, Americans still favored repeal by 54-39 percent. President Obama and the Democrats went to the wall to fight for a law that Americans oppose by a landslide.

In Georgia, a plaintiff in the lawsuit, Gov. Nathan Deal and Attorney General Sam Olens issued a joint statement on the ruling. Deal said, “Today, the highest court in the country let the American people down.”

Olens agreed, ““I disagree with this decision. Congress explicitly said this was not a tax. I call on Congress to act swiftly, repeal the law and replace it with real reform that respects the Constitution as written.”

Americans don’t like to be told what to do and they don’t like to be lied to. The Democrats have committed both sins. Most Americans know that the law was passed on lies. Americans were told that Obamacare would cut insurance premiums. Since the law was passed, premiums have risen even faster than before according to Forbes. Americans were told that Obamacare would decrease the deficit and be revenue neutral. A new study by the Mercatus Center says that the law will add more than a trillion dollars to the deficit. Americans were told they could keep their insurance and that everyone would have coverage. The Congressional Budget Office says that the law could cause 20 million Americans to lose their insurance. Barack Obama promised that there would be no tax increases for the middle class. In reality, the Heritage Foundation points out that the law includes $500 billion in tax increases, much of which will be borne by the middle and lower classes. While portraying themselves as anti-corporatists, the Democrats were secretly working with the health insurance companies to pass the law according to emails published in the Wall St. Journal.

Most glaringly, Americans were told that the individual mandate was not a tax. President Obama himself told CBS News that “I absolutely reject that notion” [that the individual mandate is a tax] when queried. "What it's saying is, is that we're not going to have other people carrying your burdens for you anymore," Obama continued. "Right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase."

Yet that is how the government presented its case in court. That is how the Court interpreted the law in order to find it constitutional, even though the law itself structured the mandate as a penalty, not a tax. It is obvious that President Obama and the Democrats lied.

Today’s defeat is not the end of the opposition to Obamacare. The law will ultimately be defeated. One effect of the ruling will be to fire up opponents of Obamacare for the November election. Mitt Romney will likely succeed President Obama and the Republicans will likely gain control of the senate. If the Republicans control both Congress and the White House, Obamacare’s days will be numbered.

Even if the Republicans are unable to repeal the law, it will almost certainly collapse under its own weight. Obamacare is too complex and unwieldy to succeed. It ignores market realities in exchange for centralized mandates and does nothing to control costs. The trillions that it adds to the deficit will add to the risk that the United States economy will collapse in the same manner of the European countries. Obamacare will not work any better than the stimulus or Obama’s other economic initiatives if it is allowed to take effect.

Even if repealed, the lasting legacy of Obamacare will be that it fundamentally and irrevocably changed the relationship between the American people and their government. Until today, the government had no power to coerce its citizens into engaging in commerce. Now, with the Supreme Court’s blessing, the federal government has no practical limits on its power as long as it can configure its mandates as a tax. Obamacare has left a gaping hole in America’s constitutional protections.

The Democrats will certainly expect to use that precedent to expand their power if the voters allow them to. After the arrogance, disregard for the law, and blatant lies of the Democrats and the Obama Administration, Americans should think long and hard before ever letting liberals near the levers of power again.

Obamacare ruling is election wild card

The Affordable Care Act finally gets its day at the Supreme Court this week. Although it may be several weeks before the Court publishes its ruling on the case, it is a sure thing that, whatever the ruling is it has the potential to have an explosive impact on the elections in November.

There are four likely outcomes for the Supreme Court ruling. First, the Court could rule that challengers to the law have no standing to sue since they have not had to pay the fine for not purchasing health insurance. This would delay a decision on the law for two to three years until after it takes full effect. Most observers consider this unlikely. Next, the Court could uphold the law in its entirety. Conversely, the Court could strike down the entire law. Finally, the Court could throw out part of the law, the individual mandate for example, and allow the remainder to stand.

The ruling will have an uncertain effect on the election. Hints at how the voters will view the ruling can be gleaned from two recent polls. According to Rasmussen, likely voters have never favored the health law. Immediately after passage in 2010, repeal was favored by a margin of 55-42 percent. In the most recent poll, taken on March 17-18, repeal was favored by 56-39 percent. Within those numbers are 46 percent who strongly favor repeal versus only 29 percent who strongly oppose it.

In a USA Today/Gallup poll of adults, Americans were split 45-44 percent on the question of whether passage of the ACA was good or bad, but the same poll shows that 38 percent believe that the law will make things worse for their family. Only 24 percent believe it will make things better. A strong majority of 72 percent believe that the individual mandate is unconstitutional. Only 20 percent believe that the requirement to purchase health insurance or pay a fine is legal under the Constitution.

Since Americans overwhelmingly oppose the ACA, Republicans have the most to gain from the Supreme Court’s decision. A victory for the administration or a muddled outcome, such as a decline to rule on the law or striking it down only in part, seems likely to aid Republicans because of the large number of Americans who strongly oppose the law. If the Court leaves the law largely intact, Republican candidates who promise to repeal the law if elected will tap into that voter anger. Anger at Democratic spending and the expansion of government fueled a landslide Republican victory in 2010 and if the Supreme Court upholds the ACA it could fuel a similar result this November.

Democrats have little to gain electorally from a Supreme Court victory. If the law is upheld, it may keep President Obama’s legacy from being tarnished as it would have been if it was found unconstitutional, but Obamacare is still a fundamentally unpopular law that was enacted without the support of the people. A reform that was supposed to have kept health insurance costs down has instead contributed to their increase at twice the normal rate of growth according to Kaiser and the cost of the law, which was touted as a plan that would reduce the deficit, is now projected cost almost double the initial estimates. If the law goes into effect, people may well find that there is even less to like about it than was previously thought.

Rep. Tom Price (R-Ga.), who is also an orthopedic surgeon, told Newsmax.com, “Both fiscally and for the sake of our health care system, Americans cannot afford the president’s healthcare law. The longer the president’s healthcare law remains on the books, the greater the threat it poses to our nation’s healthcare and our fiscal well-being.” He continued, “The CBO’s revised cost estimate indicates that this massive government intrusion into America’s health care system will be far more costly than was originally claimed. The law’s true cost to American taxpayers is part of a series of promises President Obama and Democrats in Congress made that will be broken.”

On the other hand, if the Supreme Court strikes down the law, it won’t necessarily help Republicans or hurt Democrats. A major source of contention will have been removed from the political landscape and voters who would have voted for Republicans because they opposed the ACA may move to other issues where they are more moderate. Similarly, the voters who favor the law, almost all of whom are probably Democratic voters anyway, are unlikely to be influenced by an unfavorable Supreme Court decision.

The biggest casualty of a decision sustaining Obamacare and the individual mandate would likely be the American people’s faith in government. Public opinion has been against the bill from the very beginning. Revelations of backroom deals like the “Cornhusker Compromise” and the “Louisiana Purchase” further hurt the law’s image even before it was passed. The abuse of parliamentary procedure to avoid a Republican filibuster further inflamed public opinion.

The United States has reached a point where trust in government is near 20-year lows. According to Gallup, only 19 percent trust the government most of the time. In a separate poll from Gallup last year, the federal government rated dead last in approval among a list of industries. The -46 percent net approval rating put the federal government at a historic low. Notably, respondents told Gallup that they rated state and local governments far higher than Congress or the president.

The Supreme Court is viewed more positively. Gallup’s approval rating for the Court is 46 percent versus 40 percent who disapprove. This can be compared to the approval rating for Congress at 12 percent. Sixty-three percent of Americans still trust the Supreme Court. However if the Supreme Court votes to uphold an unpopular law that was never wanted by a majority of the American people, a law that the majority of voters believes overwhelmingly to be unconstitutional, then the Supreme Court may face the same loss of trust and approval that the other branches of the federal government have experienced.

This is the great tragedy of the Obama era: that a president who once had the support and admiration of nearly all of the country, a president who pledged to eschew the “politics of cynicism” for the “politics of hope,” would become even more divisive than his predecessor; that a president who once preached the practicality of compromise and the need for national unity would use his position to short-circuit the democratic process, circumventing the will of the people and their elected representatives in Congress. The unpopularity of the Affordable Care Act and federal government itself is symbolic of the failure of President Obama to unite the people of the United States.

Originally published on Examiner.com:

http://www.examiner.com/elections-2012-in-atlanta/obamacare-ruling-is-election-wild-card