Kansas Supreme Court Upholds Ban On In-Person Religious Services

Amid the debate over whether it is legal and proper for governors to ban church services to stem the spread of COVID-19, the Kansas Supreme Court has weighed in and upheld the authority of the governor to prohibit services with more than 10 people in attendance.

Per Kansas’ KCUR news, Democratic Gov. Laura Kelly’s order was challenged by the Republican legislature. The state Supreme Court weighed in on the issue late Saturday night and handed the governor a victory hours before Easter sunrise services would have been held.

The expedited ruling was decided on a technical matter rather than the merits of the case. The judges decided that the plain language of Kansas law did not permit the Legislative Coordinating Council to overrule the governor’s Executive Order banning “mass gatherings.”

The Executive Order defined “mass gatherings” as “any planned or spontaneous, public or private event[s] or convening[s] that will bring together or [are] likely to bring together more than 10 people in a confined or enclosed space at the same time.” The order replaced an earlier order that contained an exception for “religious gatherings” and “funeral or memorial services or ceremonies.”

The opposing sides did not even gather in person to argue the case. Court proceedings were carried out via an internet video conference on Zoom.

You can read the full 23-page ruling here: https://www.kscourts.org/KSCourts/media/KsCourts/High%20Interest%20Cases/Kelly%20v%20LCC/122765Opinion.pdf

Originally published on The Resurgent

Donald Trump’s No Good, Very Bad Day In Court

President Trump lost another court decision regarding his border wall on Friday. Actually, the decision regarding the wall was only one of five court decisions that the president lost that day, but the ruling against the use of presidential emergency powers to get around congressional opposition is a singularly important one for the rule of law and the Constitution.

In West Texas, U.S. District Judge David Briones, a Clinton appointee, ruled that Donald Trump’s attempt to reprogram money appropriated by Congress for other purposes toward building a border wall was “unlawful.” Briones wrote that the 2019 omnibus spending bill specifically allocated $1.375 billion for border fencing and limited construction to the “Rio Grande Valley sector” of Texas.

“The Congressional language in the [bill] reveals Congress’s intent to limit the border barrier funding,” Briones wrote, adding “the plain text of the CAA [Consolidated Appropriations Act] restricts the amount and location of funding for border barrier construction,” prohibiting the president from diverting money earmarked for military construction and counterdrug operations to the wall.

Stuart Gerson, a former DOJ official from the first Bush Administration applauded the ruling, telling Politico, “As someone who served in government under a Republican administration, I never imagined a Republican president would attempt to expand executive power this far by overriding the appropriations power that belongs to Congress.”

“I hope today’s ruling will prompt Republicans in Washington to recommit to the checks and balances that have defined our Republic and protected our freedom,” Gerson added.

In reality, the fight to preserve congressional budgetary authority is not over. The next step for Judge Briones is to allow both sides to argue the scope of an injunction against using the reprogrammed funds and the Trump Administration is certain to appeal. In July, the Supreme Court dismissed a similar injunction but did not rule on the merits of a separate case challenging Trump’s wall construction.

Elsewhere, three separate federal courts ruled against the Trump Administration’s “public charge” rule that makes it more difficult for immigrants who might need public assistance to get green cards. Judges in New York, California, and Washington issued injunctions that stopped the Department of Homeland Security from enforcing the rule.

In Washington, U.S. District Judge Rosanna Malouf Peterson, an Obama appointee, ruled that the government had "not cited any statute, legislative history, or other resource that supports the interpretation that Congress has delegated to DHS the authority to expand the definition of who is inadmissible as a public charge or to define what benefits undermine, rather than to promote, the stated goal of achieving self-sufficiency." Two other judges, both appointed by Bill Clinton, issued similar rulings.

Acting Director of US Citizenship and Immigration Services Ken Cuccinelli argued in a statement that the rule, which exempted immigrants who have been granted asylum, lawful permanent residents and refugees, merely enforced current immigration law.

"The public charge regulation defines this law to ensure those seeking to come or stay in the U.S. can successfully support themselves financially and will not rely on public benefits as they seek opportunity here,” Cuccinelli said.

Friday’s injunctions were based on the likelihood that the plaintiffs suing the government would prevail but did not issue final decisions in the cases. As with the case regarding Donald Trump’s emergency authority, the final ruling is likely to be appealed to the Supreme Court.

Finally, the president also lost an appeal to overturn a decision requiring that he comply with a House subpoena to provide his tax documents. The US Court of Appeals for the District of Columbia Circuit ruled two to one that the president must turn over eight years of accounting documents. Judges appointed by Obama and Clinton comprised the majority while a Trump appointee dissented.

"We detect no inherent constitutional flaw in laws requiring presidents to publicly disclose certain financial information. And that is enough," the ruling stated.

Even though the five rulings fell along party lines, the evidence that activist judges ruled against Donald Trump out of tribal allegiances is slim in two of the three cases. The sole exception is the immigration cases, which hinge on Section 212(a)(4) of the Immigration and Naturalization Act The INA states that “any alien who…  is likely at any time to become a public charge is inadmissible.” As the Immigrant Legal Resource Center explains, the new policy reinterprets the vague language of the law to change the standard from “assessing whether an applicant is likely to become primarily dependent [emphasis theirs] on the government for income support” to redefine a “public charge as a person who receives any number of public benefits [emphasis mine] for more than an aggregate of 12 months over any 36-month period of time.” This is a vastly more restrictive policy, but it would seem to be within the bounds of bureaucratic rulemaking.

When it comes to congressional subpoenas, however, the Administration seems to be in the wrong. Neomi Rao, the dissenting Trump-appointed judge, wrote, “The Constitution and our historical practice draw a consistent line between the legislative and judicial powers of Congress. The majority crosses this boundary for the first time by upholding this subpoena investigating the illegal conduct of the President under the legislative power.”

However, the Supreme Court ruled in 1927 that Congress’ power to investigate is implicit. A majority held, “In actual legislative practice power to secure needed information by such means has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the Colonial legislatures before the American Revolution; and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state legislatures.” Republicans had no problem with congressional investigations into the IRS, Solyndra, and Fast and Furious.

But it is President Trump’s attempt to use a national emergency to subvert the express will of Congress that is the Administration’s most egregious example of poor legal reasoning. As Republicans were fond of pointing out during the Obama years, the Constitution explicitly gives the power of the purse to the House of Representatives, which declined to give the president the money that he requested for his wall. Congress’s decision to reject the president’s request does not constitute a national emergency, especially when the situation has been ongoing for decades, including two years of the current Administration in which the current president rejected three deals for wall funding.

The national emergency not only defies the Constitution and common sense, it also defies the National Emergencies Act, which does not give the president unlimited power. Even if the emergency was genuine, Trump’s actions go beyond the limited power delegated by Congress, such as the stipulation that the emergency “requires use of the armed forces.”

A final ruling striking down Donald Trump’s abuse of national emergency authority would not only be a good thing, it is vital to the constitutional balance of powers. If all the president has to do to bend Congress to his will is to find some dubious grounds to declare an emergency then Congress becomes extraneous and unnecessary. We will have moved from a constitutional republic to rule by presidential decree.

“Today’s ruling vindicates the Founders’ wisdom and confirms that the president is not a king and that he cannot override Congress’s power to decide how to appropriate funds,” Kristy Parker, a plaintiff’s attorney with Protect Democracy said of the ruling on the border wall.

Here’s hoping that the constitutionalists on the Supreme Court see it the same way.

Originally published on The Resurgent

July 27th, 2019 Trump Wins Victory On Wall At Constitution’s Expense

Yesterday, the Supreme Court ruled in a 5-4 decision to lift a stay by a lower court judge preventing President Donald Trump from reprogramming funds appropriated by Congress to build the wall. The decision will allow the president to use $2.5 billion in funds designated for defense spending to begin construction on about 100 miles of border wall. Republicans applauded the decision, but the blows being struck against the Constitution’s balance of powers will have lasting consequences.

The ruling stems from President Trump’s decision to declare a national emergency on the southern border last February and move money appropriated by Congress for other purposes to the construction of the border wall. Under the president’s plan, $600 million from the Treasury Department’s forfeiture fund, $2.5 billion from Defense Department counter-narcotics activities, and $3.6 billion from military construction projects would be reprogrammed to finance construction of the wall. Friday’s ruling regards the $2.5 billion for the Defense Department, which Trump had designated for fencing in Arizona, California, and New Mexico.

Plaintiffs in the case were a group of environmental groups led by the Sierra Club and represented by the ACLU. The groups argued that they had “recreational and aesthetic interests” such as “hiking, birdwatching, [and] photography” in areas near the border. In June, a federal judge appointed by Barack Obama agreed and blocked the transfer of funds. Earlier this month, a three-judge panel from the Ninth Circuit upheld that decision in a two-to-one vote, noting that Congress had appropriated $1.375 billion for border barriers, rather than the $5.7 billion requested by the president. In the court’s view, that meant that the $2.5 billion had been “denied by the Congress.”

“As for the public interest, we conclude that it is best served by respecting the Constitution’s assignment of the power of the purse to Congress, and by deferring to Congress’s understanding of the public interest as reflected in its repeated denial of more funding for border barrier construction,” Judge Michelle Friedland, an Obama appointee, wrote for the court.

The Trump Administration appealed the stay to the Supreme Court, which ruled on Friday, that, “The government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review.” This means that the injunction preventing the Trump Administration from spending the reprogrammed $2.5 billion is lifted and the case returns to the lower court.

The Supreme Court’s five conservatives voted to lift the stay while Justices Ginsburg, Kagan, and Sotomayor dissented. Justice Stephen Breyer proposed a compromise in which the government could negotiate contracts but not actually spend the reprogrammed money until the case was fully decided.

While the ruling is understandably being celebrated by Republicans, the decision, along with another June decision by a different federal court, puts the judicial thumb firmly on the executive branch’s side of the scale that represents the balance of federal power. In the June decision, a Trump-appointed judge rejected a similar lawsuit by House Democrats, arguing that the national emergency spending represented a political dispute that was outside his authority to decide.

The fundamental problem is that courts are tying the hands of Congress in the face of abuses of executive authority. President Trump moved the funds under a federal statute that allows money to be reallocated to address “unforeseen needs” that have not been “denied by the Congress.” In the case of the border wall, neither condition applies. The problem of illegal immigration is hardly unforeseen, having been a hot button issue for more than a decade. The question of the border wall is one that has been repeatedly considered and denied by Congress. In fact, Trump’s national emergency declaration came immediately after the government shutdown in which he demanded unsuccessfully that Congress appropriate money for the wall.

As Republicans were fond of noting during the Obama era, the Constitution gives the House of Representatives the power of the federal purse. If federal courts refuse to rein in an executive that flouts the rule of law in order to bypass an uncooperative Congress, then the constitutional power of Congress is weakened and the president, already much more powerful than the Framers envisioned, becomes even stronger and less accountable. If the courts won’t uphold the constitutional role of Congress in the appropriation of funds then impeachment may be Congress’ only weapon against an out-of-control executive branch.

The judicial battle over national emergency funding for the border wall is not over yet, however. The Sierra Club case will now go back to the lower court to be decided. House Democrats are also appealing the lower court ruling in their own lawsuit against the president’s transfer of funds. It is entirely possible that one or both cases will return to the Supreme Court for a ruling on the question of whether using a national emergency to bypass congressional appropriations is constitutional, rather than the technical question of whether plaintiffs have the legal standing to sue.  

The idea that a border wall is the answer to the illegal immigration problem has become an article of faith on the right. Personally, I have my doubts about whether a barrier along the border would be as practical or effective as its proponents claim (click here for details). However, the legal question that needs to be answered is not whether a wall is a good idea but whether the president can unilaterally transfer funds appropriated by Congress to programs that were specifically rejected by Congress.

For Republicans to back the president on that question is to support a broad expansion of executive power at the expense of Congress. Backing that expansion confirms that Republicans are not a small government party of constitutionalists but a party that favors big government solutions when they come from the right. With many new Trump appointees on the bench, it is entirely possible that Republicans may get their wall over the objections of Congress, but the expansion of presidential power may come back to bite them.

Originally published on The Resurgent

Federal court extends civil rights protections to gays

In an unprecedented ruling, the full 7^th Circuit Court of Appeals in Chicago has ruled that the 1964 Civil Rights Act protects gay, lesbian and transgender employees from discrimination. Sexual orientation is not mentioned in the text of the Civil Rights Act and the law has never been interpreted to include sexual orientation.

The Associated Press notes that the 8-3 ruling is unusual for several reasons. The court is considered to be somewhat conservative even though it is in Chicago. Five of the eight judges were appointed by Republican presidents who typically value a literal interpretation of the law as opposed to Democrats who tend to stray from the written text.

The case centers on Kimberly Hively, a former teacher at Ivy Tech Community College in South Bend, Indiana. Hively says that after an administrator saw her kissing her girlfriend in 2009, the school refused to promote her, harassed her and eventually fired her four years later.

The case hinged on the meaning of the word “sex” in the Civil Rights Act, which bans workplace discrimination based on race, religion, national origin, and sex. Hively’s lawyer argued that discrimination due to sexual orientation is illegal under the law’s prohibition of sexual discrimination. This interpretation is based on the Supreme Court ruling in Price Waterhouse v. Hopkins (1989) which held that gender stereotyping was a banned form of sex discrimination. Congress has repeatedly failed to add sexual orientation to the list of protected classes under the law.

Judge Diane Wood, a Clinton appointee, said in the majority opinion, “Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means that it falls within Title VII's prohibition against sex discrimination ....”

“I don't see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she's a woman,” wrote Judge Richard Posner in his opinion that concurred with the majority ruling. Posner was appointed by President Ronald Reagan.

“Who will be hurt if gays and lesbians have a little more job protection?” Judge Posner reportedly asked during arguments on the case per New York Magazine. “So, what’s the big deal?” he continued when the attorney did not give an answer, “Are we bound by what people thought in 1964?”

“(Lawmakers in the 1960s) shouldn't be blamed for that failure of foresight,” Posner wrote in his opinion. “We understand the words of Title VII differently not because we're smarter than the statute's framers and ratifiers but because we live in a different era, a different culture.”

“We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions,” Judge Diane Sykes, who was considered by President Trump for the Supreme Court, wrote in her dissent. “It's understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we're not authorized to amend Title VII by interpretation.”

Ivy Tech said in a statement that its policies already prohibit discrimination on the basis of sexual orientation and denies that it discriminated against Lively at all. The factual question of whether discrimination occurred was separate from whether the discrimination was illegal under the Civil Rights Act.

The 7^th Circuit ruling contradicts a ruling by a three-judge panel in Atlanta three weeks ago. Because of the controversial interpretation of the law and the fact that different courts are issuing opposite rulings, the case is likely to come before the Supreme Court. 

Originally published on The Resurgent

Never Trump wins Virginia lawsuit

(Michael Vadon/Wikimedia)

As Republican delegates prepare to make their way to Cleveland for next week’s Republican National Convention, a Virginia judge has given the Never Trump movement a breath of life. In a stunning ruling, a federal judge ruled that Virginia Republican delegates are not bound by the state law that requires them to vote on the first ballot at the convention for the winner of the state primary.

The decision stemmed from a suit brought by delegate Carroll “Beau” Correll against Virginia elections officials. Correll’s suit claimed that the law binding him to vote for Trump, the winner of the Virginia primary, was a violation of his First Amendment rights to freedom of speech and association. Even though Donald Trump won the Virginia primary, many supporters of rival candidate, Ted Cruz, were appointed as delegates to the convention.

The case, “Correll v. Herring,” will apply only to Virginia delegates, but Judge Robert Payne did cite precedent in his ruling that could apply to other states that have similar laws. In “Democratic Party of U.S. v. Wisconsin ex rel. La Follette” (1981), the Supreme Court ruled that state law could not override party rules for delegate selection. In that decision, Justice Potter Stewart wrote, “A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution. And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational.”

In 1912, the Nebraska Supreme Court ruled, “expression of a preference for President by those voting at primary election ... is only morally binding on delegates to national party conventions.” In other words, delegates are not legally bound by primary votes, but may have an ethical obligation to follow the will of the voters.

The judge, Robert Payne, has served on the U.S. District Court for the Eastern District of Virginia since 1992. He was nominated to the court by George Herbert Walker Bush and received the unanimous approval of the Senate.

The ruling will likely encourage other Republican opponents of Trump to make a stand against the presumptive nominee at the convention next week. There is a movement afoot to change Republican Party rules that bind delegates. Kendal Unruh, the leader of the “Dump Trump” movement, said earlier this week in the Daily Wire that there were enough votes on the rules committee to “free the delegates.”

David Rivkin, the attorney for Correll, said in a statement after the ruling, “Today's decision should give comfort to all delegates that they cannot be punished for voting their conscience at the Republican National Convention.”

Read it on Conservative Firing Line

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

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