Friday, June 29, 2012

Quick Thoughts on Supreme Court and Roberts Upholding Health Care Act

I guess I will put my thoughts out  even though everyone and his brother is doing so.

I am not very thrilled about the result of the case. I am not a big fan of the law. Also right now my focus is very much on the HHS birth control mandate which I view if enacted is a very dangerous precedent for religious liberty and Church State relations.

 I actually thought the chances of the whole law being struck down was very low so I was not expecting the Supreme Court to actually come in yesterday and save the day as to HHS Mandate matters by throwing the whole law out. I just assumed we would have to do the planned political fight and legal fight in the courts.

However learning that the Justices were so close to throwing out the entire law well geez.

Still the HHS birth control mandate rest on separate issues , and I am confident we got a good shot in the courts if Romney is not elected to withdraw the rule. In fact parts of the opinions make me think our case just got better. More on that later.

There is a lot in the opinion to like. I think the limits on the commerce clause for the future are real. I also disagree with many conservatives rants that one can just do anything under the TAX power as you could under the the Commerce or Necessary or Proper clause.

That seems to me to be very incorrect , and what Roberts has done here might be very significant and far reaching. Also the fact that the Court has put limits on how the Federal Government can black mail the states as to having to implement programs I think is VERY HUGE.

A few words on Justice Kennedy that led a very strong dissent. Both conservaives and liberals have advocated quite a false picture of Kennedy. I was not shocked at all at him thinking the whole law should be thrown out. His concerns about Federalism have been getting stronger and stronger in his opinions over the years. The fact that  most people did not seem to give this much weight just shows most are not reading the actual text of the Supreme Court opinions from start to finish in my view.

Final words on Robert. No he is not a traitor and I don't think he caved into public pressure. I am not quite buying yet his tax argument , but it is a fair one. Roberts does make a good point it is not his job to save us from our political choices. That is very true. As a Louisiana person from a codial state that has a high respect for Legislation I also get the viewpoint the job of the court is not set out to destroy a law but to conserve as much of it as you can.

Orin  Kerr had a good read on Chief Justice .Roberts and this case at  The Conservative John Roberts . I agree with most of it. As to the TAX power question that ended up saving the Affordable Care Act:

...Of course, Roberts ultimately concludes that the mandate is constitutional on the ground that the mandate can be read to work like a tax — and that so read, the law is constitutional. But methodologically, I don’t think there is anything “liberal” about that approach. The ultimate question on the taxing power was whether to read the a particular law formally or functionally: Do you look at whether the law says that it is tax, or do you look at whether it acts like a tax? There are pros and cons to each approach. But there’s nothing jurisprudentially liberal about taking the functional approach; it’s just the alternative way to assess the scope of the tax power.

I think that is a strong point and I agree.

Some will argue that the tax power argument comes off as a technicality, and the fact that the case hinges on a technicality suggests that Roberts was really just looking for a way to uphold the mandate. But it’s important to remember that the entire challenge to the Affordable Care Act was premised on a technicality. Everyone challenging the Affordable Care Act agreed that Congress could enact a single-payer system. Everyone challenging the Affordable Care Act agreed that Congress could enact the same law as it did if it only chose the formal label of a tax. So the nature of the challenge to the mandate was a bit of a gotcha argument: The major legislative achievement of the Obama Administration should be struck down because of the technical way it was done, even though Congress could have passed the same legislation with a few changes if only the Court had announced those changes beforehand rather than after. In part, that was the strategy behind the challenge: Make the challenge so narrow that the challenge really just applied to this one law. The thinking was that this would make it more likely that the Court would strike down the Act. But that also meant that the Court had an easy way to uphold the law, as they could just read the technicalities accordingly.

Well he has a point there. Again read the whole piece that is from a conservative viewpoint.

It should be noted that just one year ago it was assumed by many the ACA would pass muster by a 8 to 1 vote. That was very wrong. It shows susbtantial progress in the third branch of Government on all levels that many "conservative" legal arguments here are now rather mainstream.

Anyway now the ACA ( Obamacare ) must be handled in the political arena. The fight against the HHS Birth Control Mandate will continue in both the COURTS and the public square. That fight is now just getting started.

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