Good Question, Mr. Chief Justice!

Ilya Shapiro points out an interesting exchange from the oral argument on ObamaCare.  When the Solicitor General asserted that the Court “has got an obligation to construe [the mandate] as an exercise of the tax power, if it can be upheld on that basis,” the Chief Justice interrupted him, and they had the following exchange:

CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?

GENERAL VERRILLI: Well—

CHIEF JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?

GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is—in the Internal Revenue Code it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say—

CHIEF JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.

GENERAL VERRILLI: Well, I—you know, I don’t—there is nothing that I know of that illuminates that, but certainly…

What caused Roberts to adopt the position put forth by the bumbling Verilli?  Speculation continues, but as Ilya suggests, perhaps Roberts was against treating the mandate as a tax before he was for it.

What’s at Stake in 2012: The Supreme Court

If Barack Obama gets re-elected, he’ll have the White House for the next four years – and the Supreme Court for the next twenty-five.  The average tenure of a Supreme Court Justice today is 25 years, as Clint Bolick recently pointed out in the WSJ.  Obama has already nominated two relatively young knee-jerk liberals to the Court (Kagan and Sotomayor for those keeping score at home).  How many more justices will Obama get to nominate?  Look at it this way: three justices – Scalia, Kennedy, and Ginsburg – will reach their 80s during the next presidential administration.  And Stephen Breyer will be in his late 70s. 

Bolick is right to remind us of the many 5-4 decisions in recent Supreme Court jurisprudence.  Just one more liberal vote could undo any or all of these: campaign finance (Citizens United), gun rights (Heller and McDonald), school choice (Zelman).  Even in the recent healthcare case, the good parts of the decision, setting limits on the Commerce Clause and on Congress’s power to coerce states , attracted only five votes.

Now that John Roberts is officially a “swing vote,” the need to get conservatives on the Court is more pressing than ever.  A Romney presidency does not guarantee conservative justices, but another Obama term absolutely guarantees more liberal justices.  For the left, it will a gift that keeps on giving.

Three Cheers for Rick Perry

Earlier this week, Governor Perry announced that Texas would not be setting up an ObamaCare exchange, and would not participate in ObamaCare’s Medicaid expansion.  In fact, Perry is the sixth governor to opt out of these two provisions.  In yesterday’s Washington Times, Perry argued that both the exchanges and the Medicaid expansion represent “brazen intrusions into the affairs of states.”   As I said recently, the states can defeat ObamaCare if enough of them refuse to implement its provisions.

The usual suspects, including the New Republic, are blasting Perry for the sin of turning down “free” money from Uncle Sam.  After all, the federal government is picking up 100% of the costs of the Medicaid expansion, right?

Not exactly.  Uncle Sam will pay none of the administrative costs associated with adding millions of people to the Medicaid rolls.  Yes, the federal government will pay 100% of the additional Medicaid benefits for 3 years.  And then 90% for the next 7 years.  But after 10 years are up, there’s no guarantee of any further federal funding.  And you can bet that if Congress re-ups after 10 years, it will attach yet more strings to any further funding.  That’s the insidious nature of the federal grants: you get the states hooked on them, and then you layer on more and more conditions.

And there’s the even more fundamental objection made by Perry: “this “federal money” is being printed out of thin air – racking up trillions of dollars of debt on the backs of our children and grandchildren.”

As for the exchanges, as I said in my recent post, ObamaCare has no viable mechanism to force states to set up healthcare exchanges.  The law seems to assume that the states would willingly play along.  Oh well, 44 more states to go.

If the Mandate is a Tax, it’s Still Unconstitutional

Chief Justice Roberts’ opinion on ObamaCare “should be studied for years to come  as lesson of how a judge can reach his result no matter what the legal materials with which he is working,” says Randy Barnett at Volokh.  One of the weaknesses of Roberts opinion is his incredibly superficial treatment of the ramifications of treating the individual mandate as a tax.

For starters, what kind of tax is it?  The Constitution grants Congress “Power To lay and collect Taxes, Duties, Imposts and Excises,” however any “direct tax” must be apportioned so that each state pays in proportion to its income.

Rob Natelson explains that the original understanding “was that direct taxes were imposed on status, while indirect taxes were imposed on transactions. A tax that one must pay despite doing nothing is the quintessential direct tax.”  But if ObamaCare’s “shared responsibility payment” (ie, the penalty for not buying insurance) is  a direct tax, then it must fail since it is not apportioned.

The Chief Justice treated this question superficially, citing for example, a founding era case in which the justices “asserted or strongly suggested” that the only “direct taxes” were capitation taxes and land taxes.  I think it’s worth challenging Robert’s assumption here, but such a challenge might have to wait until the government starts collecting the payment in 2014.

The States Can Block ObamaCare

ObamaCare has passed constitutional muster – so far – but it’s still a long way from implementation.  That won’t happen without the voluntary cooperation of the states, which has been slow to evolve.  The administration is desperately trying to put together a coalition of the coerced and the bribed to get this thing off the ground.

For example: The law gives states “grants” to create healthcare exchanges, the government-run insurance markets that are supposed to make the whole scheme work.  So few states are making progress on the exchanges that HHS has just announced that states can use those grants to cover up to six years of operating expenses, according to Cato’s Michael Cannon.

But wait – aren’t the exchanges mandatory?  The reporters at the NY Times and WashPo tend to describe them as if they were.  In fact, they are not.  Which is why the Times recently ran a scolding editorial declaring that “it is imperative that as many states as possible move aggressively to establish . . . new insurance policy exchanges.”  Of course, if states were truly required to set up the exchanges, they wouldn’t need a nudge from the Times.   As Cannon has explained, there’s no penalty for not setting up an exchange.  Under ObamaCare, the federal government can theoretically create an exchange for a state — except that HHS doesn’t have the money.

Write your governor and your state representatives.  Tell them to just say no to health exchanges.

 

The Road to Independence — and Back Again?

I’ve been reading HW Brands’ biography of Benjamin Franklin, The First American. As Brands points out, up to 1774, Benjamin Franklin had been a loyal subject of the Crown and had worked (as a political agent for several of the colonies) to smooth over transatlantic disagreements. But in January 1774 Franklin was hauled before Britain’s solicitor general, Alexander Wedderburn, to answer questions about rebellious activities in the colonies, including the recent Boston Tea Party. Apparently, for the sake of scoring political points, Wedderburn simply used the occasion to hurl insults and invective against Franklin.

The event was decisive, says Brands, because it helped Franklin answer a question that he and his compatriots had been asking for years: “Who were they? They must be Americans, for they could not be Britons. . . . Once the most loyal of Britons, [Franklin] became the most radical of Americans.”

With America’s elites plumping for national health care, a centralized economy, and a weak defense, it would appear that too many of us are suffering from the old pre-1774 identity crisis. Come, come. Ben Franklin sorted this out long ago. We are neither Britons, nor Europeans. Let us continue to chart our own course or American will become Europe. Greece, to be exact.

The Declaration and Our Rights

The Declaration of Independence announced the birth of a new nation, but its lasting significance lies in the fact that it articulated a governing philosophy that was to guide that nation — at least for a century and a half. Alas, recent decades and recent (ahem) Supreme Court decisions have not kind to “life, liberty and the pursuit of happiness.” But it’s time to dust ourselves off, and renew the fight for liberty.

The Declaration is a good place to start. Don’t let people tell you that the Declaration is a mere historical relic with no legal import. The first two paragraphs of the Declaration are freighted with big, radical ideas that were later codified in the state and federal constitutions. To unpack the language, you can’t do better than Randy Barnett’s Annotated Declaration, over at the Volokh Conspiracy. I urge you to read the whole thing (it’s not very long), but here’s his summary:

The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: “first comes rights, then comes government.” According to this view: (1) the rights of individuals do not originate with any government, but preexist its formation; (2) The protection of these rights is the first duty of government; and (3) Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights — or its systematice violation of rights — can justify its alteration or abolition; (4) At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so. This is powerful stuff.

Powerful indeed. And these concepts worked their way in to the post-1776 constitutions that the states drew up in the early years of the war. In the original federal constitution, the panoply of natural rights were protected by the Privileges & Immunities Clause. In the 1823 case of Corfield v Coryell, Justice Bushrod Washington (nephew of George) summarized privileges and immunities as including “the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.” But even with the P & I clause, the States insisted on a Bill of Rights enumerating certain liberties, and adding the 9th Amendment, which formally recognizes the existence of unenumerated (natural) rights.

When the 14th Amendment was ratified in 1868, the “Privileges or Immunities” Clause of that amendment was also understood to codify the natural rights expressed in the Declaration. Unfortunately, that clause is now a dead-letter, thanks to a number of activist Supreme Court decisions, starting with the “Slaughter House Cases.” As recently as the 2010 decision in McDonald v. Chicago, the Supreme Court refused an invitation to revive the Privileges or Immunities Clause — only Justice Thomas had the guts to admit that the time had come to correct the Court’s past mistakes.

As we fight for liberty, remember our fundamental law, properly understood, is on our side. The Constitution was originally understood to preserve our pre-existing natural rights to the maximum extent consistent with public order. What’s the harm of the government being able to compel individuals to enter commerce? The harm is that it represents the triumph of brute force over the rule of law: and every such victory for brute force brings us that much closer to tyranny.

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