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Constitutional Scholar Discusses Supreme Court Decisions


King v. Burwell was the second big court challenge the Cato Institute helped bring against Obamacare. The first was Federation of Independent Business v. Sebelius. In that case, it had been argued that the Constitution did not empower Congress to force the purchase of a particular product. The example of making a citizen buy broccoli was often brought up to illustrate the absurdity. But then, in a decision as twisted as any of the bent and broken rules that brought ObamaCare to life, a majority on the Supreme Court “rewrote” the document claiming what was admittedly not a tax was indeed a tax.

King v. Burwell challenged the lawfulness of subsidies awarded by the federal government through federal exchanges. ObamaCare specifically authorized those subsidies only through state-created exchanges. Seeing the loophole, the Heritage Foundation, among other groups, urged states to let the federal government set up its own exchanges. Thirty-six states followed the advice, allowed federal exchanges to begin operating in their state, and then had legal standing to sue because the federal government was trying to collect taxes the subsidies triggered, with absolutely no authorization.

It seemed a small matter to nitpick in the 2700-page bill with its reams of ensuing regulations, but it was a lynchpin. It was estimated over five million people enrolled in federal exchanges would not be able to afford policies without the subsidies. If they couldn’t afford the insurance, they wouldn’t be able to pay the penalty. Obamacare would require insurers to pick up all applicants nonetheless. Covering costs for the indigents would require raising premiums on everybody else, marginalizing a new group with each iteration in what became commonly referred to as a “death spiral” in the insurance industry. The mess would, hopefully, rally more support for a more market-friendly solution to America’s healthcare problems.

But then, in a crazy but not surprising move, a majority on the Supreme Court ruled the bill did not say what it meant. “By the state” did not mean “by the state.” In his widely praised dissenting opinion, Justice Scalia noted, “This Court . . . has no free-floating power to rescue Congress from its drafting errors.” Suggesting the bill be renamed “SCOTUScare,” he added, “But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

Levy believes the courts have pretty much been exhausted as a tool for defeating ObamaCare. He deems the remaining case working its way through the system a long shot. House Republicans are suing the Obama administration for spending money on an ObamaCare program for which Congress did not appropriate funding. The administration argues funding was implicitly made permanent and mandatory when ObamaCare passed. A US district court judge is still considering whether or not the plaintiffs have standing.

The next course of action Levy advocates is to get the right Republicans elected. Acknowledging backpedaling in the establishment, he said there are enough “right-wingers” and “Tea Partiers” running for office. [NOTE: Although Cato is a nonpartisan think tank, the reporter chooses to skip the charade and name which big party works to get more people dependent on big government and which advocates personal responsibility, free markets, and the repeal of Obamacare.]

The right collection of Republicans would repeal the bill and replace it with something better. Rather than writing another 2700 pages to pass to know what’s in them, Levy says government needs to get rid of market-distorting laws. Free trade is good, so people should be able to buy insurance across state lines. There is still a lot of room for tort reform and reducing requirements for medical malpractice insurance. The most bang for the buck, though, can be achieved by eliminating inequities in the IRS code that allow employers, but not individuals, to purchase tax-exempt insurance.

Employer-provided insurance came to be because of wage and price controls demanded by labor unions. Employers offered perks instead of wages to work around the law, and healthcare was the primo benefit. The result was “two wedges driven between consumers and providers:” insurance companies and employers. Healthcare costs are so outrageous in this country largely because people have no negotiating tools. The cost of LASIK and cosmetic surgery continue to drift downward because they are not covered by insurance. If insurance were reduced to high-deductible, catastrophic coverage; mass overutilization would surely take a hit as efficiency and quality guided consumer choice.

In addition to replacing Obamacare with deregulation that will inspire chain reactions of market corrections, a slate of winners committed to defending the Constitution should lead to more reasonable Supreme Court decisions, because the president is still the one who nominates appointees, and the Senate confirms them. Seating judges who respect the law as written should reign in broad interpretations that are knocking down the checks and balances that are supposed to separate powers.

The big problem with the courts, Levy maintains, continues to be the ongoing battle between two schools of thought on Constitutional interpretation. Textualists take the document literally, whereas followers of the living tree doctrine believe the document should be molded to conform to changes in technology, cultural norms, and science. Scalia, Thomas, and Alito subscribe to the former; Breyer, Kagan, Ginsburg, and Sotomayor, the latter. Roberts and Kennedy can go either way. Levy describes the latter form of interpretation as “corrupt.” He argues none of the nation’s Founders foresaw the Internet when they listed freedom of speech in the First Amendment, and yet nobody contends its use is not covered. Levy admits words follow trajectories as the language evolves, but words should be interpreted in “an ordinary context.”

One person’s vote won’t even be a drop in the bucket, but people can start now to educate their neighbors with water-cooler discussions, cocktail party debates, letters to Congressmen and editors of newspapers, and donations to organizations with a proven track record for defending the Constitution.

In Other Matters –

Levy agreed with the Obergefell v. Hodges decision. The court ruled the Due Process and Equal Protection clauses of the Fourteenth Amendment required states to issue licenses to gay marriage applicants and recognize licenses issued for the same in other jurisdictions. The majority in the 5-4 decision ruled rights are derived “not from ancient practices but from our evolving understanding of liberty.” Conservatives object, saying the Constitution does not enumerate definition of marriage as a power of the federal government, but Levy argues states legislating against gay marriage are exercising rule by majoritarian impulse, against which the Constitution should protect. He argues without similar interventions by the court, the country would still be practicing school segregation and banning interracial marriage. [NOTE: The decision, in and of itself, is not a threat to conservative outposts so much as fears that, combined with other federal requirements, the decision would force religious groups to participate in ceremonies against their conscience.]

In three cases alleging the EPA violated the Clean Air Act by failing to consider costs as well as benefits, Levy agreed with the 5-4 decision again. The liberal justices argued the EPA does consider costs of compliance, but not as an upfront concern in rulemaking. Levy said the decision did not go far enough, as he wants unelected EPA bureaucrats out of the legislative business entirely.

In Glossip v. Gross, the court ruled in a 5-4 decision that midazolam hydrochloride may be used in a cocktail of three drugs used for lethal injections. Plaintiffs had argued the new drug was not effective and had subjected recipients to cruel and unusual pain in botched executions. In dissents and responses following, Breyer suggested the country review its acceptance of the practice of capital punishment, citing the Eighth Amendment. To that, Scalia countered the Founders, having been strongly divided on the issue, left it as other hotly-contested matters, to the people to decide. Wrote Scalia, “By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”

In Arizona State Legislature v. Arizona Independent Redistricting Commission, Levy says, “The court got it awfully wrong, but the result is good.” Redistricting, the practice whereby legislators double-bunk opposition-party candidates and gerrymander them out of supporting districts, is a “process so highly politicized it undercuts any claim we have of representative government.” To address this, Arizona voters passed Proposition 106 to create an Independent Redistricting Commission, which was then sued by the state legislature. The 5-4 vote in favor of the IRC flew in the face of Art. 1, Sec. 4, Clause 1 of the Constitution, which says, “The Times, Places, and Manner of Holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . .” Representatives of the legislature said “legislature” meant “legislature,” while representatives of the IRC called for a broader interpretation. “Seventeen references to the ‘legislature’ can’t possibly be read to mean the people. It means the legislature,” said Levy.

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