Friday, June 29, 2012

Roberts Rules: United States Supreme Court Upholds Obamacare 5-4 Making USA the Last Industrialized Nation of Western Civilization to Provide National Health Care: Radical Elements on the Court Are Defeated

We bow our hat to U.S. Supreme Court Chief Justice John G. Roberts Jr. for the first judicial opinion of his judging realm worthy of his lofty title. See Roberts Rules for Order by Hendrik Hertzberg at The New Yorker (the image below is linked from the Wikipedia):

In a nip-and-tuck 5-4 decision (read the opinion here) in a case formally titled National Federation of Independent Business v. Sebelius, the U.S. Supreme Court -- surprisingly, to many observers --  upheld national health care in the United States as a constitutional form of taxation in a decision upholding the Affordable Care Act, also known as "Obamacare".

 (see the text transcript of the video at
Adam Liptak has the story at the New York Times
in Supreme Court Lets Health Law Largely Stand, in Victory for Obama

and Paul Krugman gives an analysis at The Real Winners, writing:
"[A]lmost all of us stand to benefit from making America a kinder and more decent society....
[T]he law that the Supreme Court upheld is an act of human decency that is also fiscally responsible. It’s not perfect, by a long shot — it is, after all, originally a Republican plan, devised long ago as a way to forestall the obvious alternative of extending Medicare to cover everyone. As a result, it’s an awkward hybrid of public and private insurance that isn’t the way anyone would have designed a system from scratch. And there will be a long struggle to make it better, just as there was for Social Security. (Bring back the public option!) But it’s still a big step toward a better — and by that I mean morally better — society."
The decisive vote in the case was cast -- surprisingly to this observer -- by Chief Justice John G. Roberts Jr., while the 4 dissenters were predictably "the lost triumvirate" of Justices Scalia, Alito and Thomas, lost in past centuries, to be exact, but here inexplicably joined by traditional "swing justice" Anthony M. Kennedy, who appears to have derailed in midstream.

How could Justice Kennedy possibly be so fully on the wrong side of the law in this landmark decision affecting the good health of almost all Americans in this, the 21st century? When the chips were down, Kennedy failed.

The normally prudent Kennedy must lack any real conception of the massive domestic chaos and international loss of face that would have resulted from the defeat of the Affordable Care Act.

As Erwin Chemerinsky writes at SCOTUS blog in his excellent analysis of the court decision and majority opinion:
"Since 1937, no major federal social welfare law has been declared unconstitutional as exceeding the scope of Congress’s authority....
If the Supreme Court had taken the approach urged by the four dissenters and invalidated the entire Act, it would have been something that had not been seen since the Supreme Court struck down key pieces of the New Deal in the 1930s.
Nor from the perspective of constitutional doctrine is the Court’s reasoning surprising.  The Supreme Court found that the minimum coverage requirement – the so-called individual mandate – is essentially a tax. Individuals must either have health insurance or pay a tax. In every way, it functions as a tax; it is collected by the Internal Revenue Service and is a small percentage of income or a flat rate. Since 1937, not one federal tax has been declared unconstitutional.
The result was best forecast by a question asked by Justice Sonia Sotomayor at the oral argument.  She asked the attorney representing the states challenging the law, Paul Clement, why couldn’t Congress raise everyone’s taxes to pay for health care and then give an exemption to those who already have health care? Of course, Congress could do this and that is exactly how the individual mandate functions. It is true that President Obama never called it a “tax,” but many members of Congress did, and labels certainly are not decisive in constitutional law."
That is the correct and prudent legal analysis, made by a Professor of Law at the University of California, Irvine School of Law, who thereby obtains our scholarly admiration. Well done, sir!

Note in this regard, by the way, that the dissenters are not the "conservatives" that they claim to be and that others see in them.

Quite the contrary, they are more like radical revolutionaries trying to change the substance and foundation of the American republic -- for the worst.

They failed. Thankfully.

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