Tag Archives: government

Some Thoughts on Obamacare

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Since the Supreme Court is taking up the Patient Protection and Affordable Act this week, I thought I’d rumble on about it for a bit.  There’s a nearby post of my rumblings on one aspect of the Act, the HHS contraceptives and abortion mandate, nearby.

As Adam White, of The Weekly Standard, points out,

Ordinarily, judges decide cases by applying the text of laws and the precedents laid down in previous cases. But the Supreme Court is no ordinary court, and the cases that it chooses to decide are not ordinary ones. Cases in which the lower courts disagree; cases of utmost national importance; cases for which there is little precedent or the written law is ambiguous​—​this is the Supreme Court’s daily fare.

Indeed.  However, for the Supreme Court, the text of the law can flow only from these sources: the supreme Law of the Land—our Constitution—and the law, here PPACA, as Congress wrote it and the President signed it.  Moreover, the Supreme Court can use that lesser law in its rulings only after finding that law to be constitutional—proper and necessary (not to the law’s purpose, but to effectuate one or more of Art I, Section 8’s enumerated Congressional powers).  If the law is not both proper and necessary, then the Court cannot use it in its ruling but must strike it down instead—and that, generally, becomes the substance of the Court’s ruling.

This is the sum of the present case before the Court: is the Individual Mandate part of PPACA constitutional, and by extension can PPACA without the Individual Mandate survive: is the Individual Mandate both proper and necessary.  Also informing the Court’s ruling, though, are secondary precedents, prior rulings by the Court in similar controversies.  These rulings are secondary precedents because they can only (legitimately) come into play after due consideration of what the Constitution actually says on this matter and then only after due consideration of the law itself—PPACA.

The present case rests on whether the Commerce Clause allows Congress to regulate individual entry into transactions, or whether such decisions can only be made by the individuals involved and only in accordance with the individuals’ own imperatives.  Next, the PPACA as an implementation of that regulation must be both a proper means of implementation—i.e., in conformance with the Constitution—and necessary—i.e., the most efficient and least intrusive means of effecting that regulation.

White goes on make a case for PPACA’s impact on the very structure of our governmental system, and the erosion, if not elimination, of the federalism system we have now, should PPACA be upheld.  In my meager post, I want to stay with the narrower questions: PPACA’s relationship with the Commerce Clause, the Necessary and Proper Clause, and individual liberty.

Commerce Clause argument

The Commerce Clause was well understood to regulate commerce solely among the several States and to regulate only the commerce of a product in being, explicitly excluding the original production of that product, regardless of the purpose of producing it (e.g., for interstate trafficking).  Thomas Jefferson made this point in his February 1791 Opinion… letter to President George Washington concerning the constitutionality of a national bank:

For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.

Plainly, the Commerce Clause was not intended to enable the Federal government to reach inside any State to regulate trafficking, either the State’s internal commerce, or any individual’s commerce, any more than could the government reach inside any of the other Sovereign entities of the clause.

Nor was the clause intended to empower the Federal government to control in any way that inter-State trafficking.  The Federal government was only to regularize, or make uniform, the methods by, and the framework within which, the States with their aggregated trade might engage in commerce with each other and with other Sovereign powers.  Moreover, the trade in question consists in the commercial interactions themselves; it does not include the behavior of engaging in those transactions.  What was regularized was the exchange, and regularization does not include dictating behavior to Sovereign entities, including (Sovereign) individual citizens.

Finally, health insurance, explicitly, is not interstate commerce: the 50 states all have their own mandated requirements concerning what coverages must be included in policies and what range of premiums can be charged for those policies.  And more to the point, those policies cannot be sold in across state boundaries.  PPACA plainly violates all of this, reaching as it does inside each state to require its citizens to obey a Federal mandate to engage in trade at all.  Thus, PPACA fails the Commerce Clause test and is unconstitutional.

Necessary and Proper Clause argument

The “necessary and proper” phrasing of this clause requires that laws, to be legitimate, must be required for the goal to be achieved; further, they cannot be just for any legislative or “worthwhile” desire.  Chief Justice William Howard Taft made this clear the “Child Labor Tax Case” [emphasis mine]:

It is the high duty and function of this court…to decline to recognize or enforce seeming laws of Congress, dealing with subjects not entrusted to Congress, but left or committed by the supreme law of the land to the control of the States.  We cannot avoid the duty even though it require us to refuse to give effect to legislation designed to promote the highest good.  The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

Under the limited government of our social compact, if there are two laws that can be considered, the less intrusive, the less restrictive, one must be the one chosen; the less extensive law meets the need and does not attempt to do more.  Further, to be a proper Law, even if it were the only means of achieving a Congressional goal—necessary—that Law must be strictly fit and suitable: it must satisfy one of the enumerated powers.

Again, PPACA fails.  It is not proper because it’s unconstitutional under the Commerce Clause.

Quite apart from that, though, it’s not necessary because there are a myriad of other, less intrusive, means of addressing the claimed problem of too high, and increasing, health care and health insurance costs.  One method, for instance, would be to regularize the commerce of health insurance across state lines, beginning with allowing that in the first place, thereby allowing competition in this trafficking to bring down costs.  Related to that step is the framework step of requiring policies of differing companies that cover similar conditions to describe those coverages in similar terms, thus to ease consumer understanding.  Related, also, would be the step of disallowing government price-fixing of insurance coverage, including allowing the insurance companies to charge risk-based premiums—which will increase coverage of, among other things, preexisting conditions thus allowing price competition to bring down prices.  And this is just a sample of alternative, less intrusive, less restrictive laws.

Individual liberty argument

The Individual Mandate, by itself, takes away our freedom of choice.  No longer can we choose, for instance, not to buy health insurance and roll the dice on our health—no matter how foolish some might think such a choice.  Instead, Government presumes to choose for us—for our own good: we must buy.  Supporters claim that, since we all will consume health services at some time in our lives, those of us who do so while uninsured are freeloading off those who are insured.  This, though, is a dishonest canard.  There are many cases—my own included—where uninsured consumers pay their own way, entirely, out of their own resources.  And in my case, it was not done out of an abundance of wealth: my family was a bit above the then Federal Poverty Guideline in current income when we paid cash, from our own carefully husbanded-against-the-eventuality resources, for my wife’s biopsy and her subsequent bilateral mastectomy.

The loss of freedom extends far beyond the mere loss of choice concerning health insurance.  If the Federal government can require, under the Commerce Clause or any other rationale, an individual to buy health insurance, then that government can require that same American to buy another product, also (a particular automobile, perhaps).  That government can require that American to not buy yet another product (a firearm, perhaps).  And more generally, that government can require that American to buy, or not buy, on the government’s schedule and at the government’s dictated price.  We will have lost all of our freedom, and all of our control over our own property with this single Act.

What is the limiting principle, the principle that keeps this law from being utterly boundless?  There is no such limit.

Finally, those who argue that Wickard, and the like, will require the Supreme Court to uphold the PPACA must also explain why Brown erroneously did not uphold Plessy, and they must justify an act of naked Federal coercion, at gunpoint, to reverse Dred Scott.

In a just world, the Individual Mandate can only be struck down as unconstitutional. And since the Government has made the Individual Mandate an integral part of PPACA, explicitly eschewing any severability, PPACA must be struck down in its entirety.

One for the Good Guys

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“The Clean Water Act prohibits the discharge of any pollutant by ‘any person,’ without a permit, into ‘navigable waters’,” noted the Supreme Court in the summary of its just concluded ruling in Sackett v. Environmental Protection Agency.  It went on in that summary:

The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act.

A little background at this point: the case got to the Supreme Court because Mike and Chantell Sackett began construction on their dream home in 2007, on a lot completely surrounded by a developed residential neighborhood, complete with lots of already existing sewer lines.

The EPA decided that this completely residentially surrounded lot had wetlands on it connected to navigable waters, and it issued a compliance order to desist from construction and to restore the wetlands (violation of the order carried potential penalties of $75,000 per day—for those keeping score at home, that works out to an accrued penalty of $130 million).  Rather than rolling over and giving up on their dream, the Sacketts sought relief in Federal District Court for the District of Idaho (their property was in Bonner County, ID), arguing among other things an illegal taking under the Constitution’s 5th Amendment.  The Court dismissed and the Ninth Appellate (of course) sided with the EPA and upheld the District Court.  After all, the Ninth held, the CWA has no mechanism for a private citizen to object to the EPA’s diktat, and so there was no standing to sue.  The Sacketts appealed to the Supremes.

The Supreme Court’s unanimous ruling was short and sweet in its essence:

The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order.

Justice Antonin Scalia, writing for the Court, also had this to say about the government’s arrogance, particularly its claim that were EPA compliance orders subject to judicial review, the EPA’s ability to enforce clean water protections would be interfered with [emphasis mine]:

The Government warns that the EPA is less likely to use the orders if they are subject to judicial review.  That may be true—but it will be true for all agency actions subjected to judicial review.  The APA’s [Administrative Procedure Act, which provides for judicial review of agency rulings and orders] presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.  And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.

Justice Samuel Alito, in a concurring opinion, added this about the government’s arrogance [emphasis added]:

The position taken in this case by the Federal Govern­ment—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees. …

Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. … In a nation that values due process, not to men­tion private property, such treatment is unthinkable.

Although this particular EPA abuse began under another administration, it remains a glaring example of the unbridled self-importance of the agency and of its routine reach for additional power.

It’s also clear example of the necessity of abolishing this agency: it’s too far, and for too long, out of control, and it is irredeemable.

A Thought on Morality

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In late February, Archbishop Francis Cardinal George summarized the choices President Obama’s contraceptives mandate presents to Catholic service organizations—and by extension, to all faith-based service organizations.  Under the existing Health and Human Services regulations (which remain unchanged, despite Obama’s promised “accommodation”—an adjustment that only pushes the contraceptives-for-free mandate onto faith-based insurance organizations like GuideStone Financial Services, anyway), the choices are these:

  • abandon church teachings and oversight, or
  • pay annual fines that are “not economically sustainable” [which is the point of the fines—to coerce the organization into contravening its own conscious and religious teachings], or
  • sell their hospitals and charities to non-Catholic groups and local governments, or
  • “close down.”

Thus, Obama’s “decisions about medical care should be made by a woman and her doctor, not a woman and her boss,” thesis, often expressed through his Press Secretary, Jay Carney, doesn’t apply where it contradicts Boss Government’s demands.

But this is the position of the present administration.  Jim Towey, President of Ave Maria University, which is suing the government over Obama’s contraception mandate, describes that position this way:

Democratic and Republican presidents alike—nobody would cross this line until now.  There was always respect for conscience rights, and the fact that maybe government didn’t have the only voice on moral issues like this.

And that’s what it’s come to.  The present administration is presuming to inject the Federal government into fundamental matters of conscience, of morality.  That same administration, an administration of moral equivalence, is insisting that its version of morality is more equivalent than others’, and it seeks to impose its version on all of us.  Not by conversation, or debate, or the President’s bully pulpit—all of which would be legitimate venues for discourse and persuasion—but by Federal fiat.

Where’s the morality in that?

The Administration And Free Speech

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The First Amendment, as Judge Andrew Napolitano points out,

prohibits the government from infringing upon the freedom of speech, the freedom of association and the freedom to petition the government for a redress of grievances.

But what’s the point if government declines to listen, and/or decides to specify where a citizen might be allowed (which includes a decision to not allow) to speak, even if not speaking to his government, decides to specify where groups of citizens will be permitted (which includes a decision to not permit) to congregate?

We have though, this brand new law, the Federal Restricted Buildings and Grounds Improvement Act of 2011.  This law, as Judge Napolitano says,

permits Secret Service agents to designate any place they wish as a place where free speech, association and petition of the government are prohibited.

Thus, federal agents whose work is to protect public officials and their friends may prohibit the speech and the gatherings of folks who disagree with those officials or permit the speech and the gatherings of those who would praise them, even though the First Amendment condemns content-based speech discrimination by the government.

Our government has forgotten a critical item, and Judge Napolitano has missed it, also.  This item is far more than a “mere” violation of our Constitution.  As out Declaration of Independence acknowledges,

…Governments are instituted among Men, deriving their just powers from the consent of the governed….

Government works for us.  It has no capacity for declining to listen to us (much less to not hear us), or to dictate to us, its employers, where the employee might choose to listen—the conference room is ours, not government’s.  We will gather in the conference room of our choice, gather whom we will in that room—including our subordinate government—and say what we will to that government.  And that government will heed us.

After all, our Declaration of Independence also acknowledges that

…whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government….

and

…when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Our present administration has chosen to ignore all of this.  We have an election coming up, an excellent opportunity to throw off this administration and to institute a new one.

2nd Amendment and the Fifth Circuit

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The Wall Street Journal‘s Law Blog has a description of an egregious gun rights case.  It seems that, when Errol Houston was arrested in New Orleans in 2009 on drug and firearm charges, the police seized a properly registered gun that he had.  So far, so good—when the police arrest someone, they’re allowed to disarm him, too.  However, when the charges were dropped, the city refused to return his weapon to him.  He sued for the return, and amazingly, the district court found for the city.  Even more amazingly, the Fifth Circuit upheld the ruling, with this…logic…written by Judge Rhesa Hawkins Barksdale:

Just as some regulation of speech–e.g., of obscenity and defamation–is “outside the reach” of the First Amendment, so, too, is some regulation of firearms outside the reach of the Second.  The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense.

Houston has not alleged defendants prevented his “retaining or acquiring other firearms.”  Therefore, he has not stated a violation of his Second Amendment right to keep and bear arms.

Judge Jennifer Walker Elrod dissented.  In addition to pointing out the degree of legality of the majority opinion, violating as it does the Supreme Court’s prior rulings in similar cases (vis., District of Columbia v. Heller and McDonald v. City of Chicago), she also correctly explains the nature and meaning of the 2nd Amendment:

In the context of other enumerated constitutional rights, an equivalent per se exception for particular exercises of the right at stake (so long as other exercises of that right are permitted) would be intolerable.  Consider, for example, a court holding that the Free Speech Clause affords no protection against the government preventing the publication of a particular editorial in the New York Times because there are plenty of other newspapers that might publish the piece.  Or consider a court holding that the Fourth Amendment is inapplicable to the unreasonable seizure of a specific automobile so long as the government does not prevent the owner from borrowing, renting, or purchasing a replacement vehicle.  These examples should suffice to show the absurdity of courts recognizing categorical exceptions for each particular exercise of those rights.  In carving out such an exception from the Second Amendment, today’s majority impermissibly treats the Amendment as a “second-class right.”

Judge Elrod is right that the accessibility of alternatives is irrelevant—those alternatives are not the item itself, and the item itself remains the legitimate property of the owner.

Both the majority and Judge Elrod miss a larger point, though: the “right of the people to keep and bear Arms” is, indeed, a property right, but it is a different and more fundamental kind that that alluded by Judge Barksdale and accepted by Judge Elrod.  This property is one flowing from the endowment imbued in us by our Creator, a property of our being.  As such, Judge Elrod is right, but she doesn’t go far enough.  It is the regulation of our endowed rights that is the exception, not the possession of this or that particular item in a realization of one or more of those rights.