Justice Ruth Bader Ginsburg wrote some real whoppers into her dissenting concurrence with Chief Justice John Robert’s majority opinion that upheld Obamacare in the just published ruling on NFIB v Sibelius. (Incidentally, the tone and phrasing of her remarks, and of the major dissenting opinion, give credence to the idea that Roberts switched his vote late—a switch in time.) Here are some excerpts from the Progressive jurist’s opinion.
The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s. In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors.
But this is a distortion, an…inaccuracy…, and a revealing blind spot in her own understanding of history. What the New Deal Congress enacted was a program of supplemental, not of replacement income, for the retired, who were expected to be supported by their families, and for a then-actuarial life expectancy of some 5-7 years in retirement. Today’s Obamacare is intended to provide—entirely—”health care” from cradle to grave, some 85 years today. And Justice Ginsburg perpetuates the erroneous, but careful, combination of health care and health “insurance” into the same thing.
Then she continued the above:
According to the Chief Justice the Commerce Clause does not permit that preservation [of an alleged central role for private insurers]. This rigid reading of the Clause makes scant sense and is stunningly retrogressive….
Two things here. In the first place, that preservation should be wholly irrelevant, since there should be no central role to be played in the government’s health “care” program, since there should be no such program. Withal, that’s not a constitutional question, but a political one.
The real problem is the mindset Ginsburg exposes with that “rigid reading” canard. What other reading is possible for a document that is supposed to be changeable only by the people through a formal amendment process, and not changed at convenience through judicial creative “interpretation” to support whatever goal falls to hand?
Ginsburg plowed on:
The Chief Justice’s crabbed reading of the Commerce Clause harks back to the era in which the Court routinely thwarted Congress’ efforts to regulate the national economy in the interest of those who labor to sustain it….
The Chief Justice’s novel constraint on Congress’ commerce power gains no force from our precedent and for that reason alone warrants disapprobation….
Rather than “crabbed” or “novel,” this is an entirely accurate reading. The Commerce Clause permits the Congress only to regularize the commerce among the several States, not to centrally manage the entire economy—for any purpose. And there’s that mindset, even more so: according to Ginsburg, the world began with Jones & Laughlin and Wickard. She carefully elides the fact that these two cases had themselves overturned 120 years of precedent and case law under the Commerce Clause that had held, explicitly, that commerce that occurred wholly within a State was beyond the reach of the Federal government to regulate, and that such trivial things as acts of production or thinking about a transaction were not even commerce, no matter the decision taken or where the produce might ultimately be destined.
Then she wrote this:
The Chief Justice also calls the minimum coverage provision an illegitimate effort to make young, healthy individuals subsidize insurance premiums paid by the less hale and hardy. This complaint, too, is spurious….
But then she acknowledges, just three sentences later,
Those who have insurance bear the cost of this guarantee.
Her internal contradiction shows her disingenuousness. “Those who have insurance” include the “young, healthy individuals” who are Dragooned by Obamacare into buying health “insurance” coverage they do not need and would not otherwise buy. This Dragooning, of everyone, was justified explicitly as being in order to subsidize insurance purchases by “the less hale and hardy.”
And there’s this plain, Progressive meme:
…the Chief Justice plows ahead with his formalistic distinction between those who are “active in commerce,” and those who are not….
Now she’s channeling Judge Kessler, who ruled in Mead that our private decisions—our thoughts—are regulable by the government under the Commerce Clause.
She also writes, concerning her other colleagues’ joint dissent, that they are
asserting, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription[.]”
This is a dangerously naïve, yet typically Progressive, position to hold about a government. No government of theirs would ever get so out of hand.