Many people on the right feel Roberts betrayed them. They are simply wrong. Those individuals were more interested in seeing Obama fail than in seeing constitutional law made. I am very much a constitutional constructionist. While the document is malleable, and intentionally so, to allow for future developments, it is not 'interpreble' to become anything the reader desires.
Oddly for a doctor, I favor federal health care as a centralized service. I do so not because I want a bigger government but because I want more available health care at a lower cost that pays more efficiently. Private insurers build in a 20% profit while claiming a 2% margin. That's all accounting legerdemain. They are making a fortune, as witness the salaries of their CEOs. Federal care would have raised taxes but lowered overall spending, because the government has an administrative load of about 2%, and no profit. And if you think you don't pay for the care of the uninsured now, think again. That's why the prices are so high on so many thing- in part to pay for the burden of caring for millions without coverage.
Anyway, this is not about Obama's healthcare bill. It was a bad bill, pledged in advance to pharmaceutical companies and the insurance industry. And it had a mandate to buy insurance or pay a fine. Opponents considered this an outrageous extension of the commerce clause, while supporters considered it a reasonable extension of the same. Here is where Roberts is brilliant.
Federal powers have been expanded under only two headings- 'promoting the general welfare' and the commerce clause. The latter gives Congress the power to regulate the commerce between the several states. This power was granted (yes, that's the right word- our Constitution was meant to hold most power for the states and the People. We're a long way from that) to the federal government because of the mess of interstate laws made by each state. Each state had its own tariffs, its own MONEY, its own list of proscribed goods from neighbors. The federal government was given the sole power to regulate all of this, just as it was given the power to create a uniform currency.
The image of interstate commerce has broadened considerably. It now includes the regulation of trucking companies, radio programs, TV and the internet, since all of these represent commerce done between states. And I think all of that is quite correct, if we are going to have regulation of these things at all. (and I think we must). But the commerce clause has never been used to force citizens to buy something. This is an extension of power that is simply unprecedented. Just like the taxes hidden all through the Obama bill, this was a federal power grab of the very first order, as big as that of the creation of Social Security or Medicare.
The general public does not see these things and really doesn't seem to care, sort of like the ingredients at McDonald's. No one is interested as long as it tastes good and is cheap and fast. But enough people read the bill, and did care. They objected to the perfectly ridiculous way in which it was rammed through Congres, with leadership actually saying the bill had to be passed to be read. Wow. Well, enough about machine politics at a national level. The Constitution.
This was the constitutional question in front of Roberts' court- can you use the commerce clause to force people to buy things. Roberts did something I think is extraordinary and subtle. He clearly and unequivocally articulates that the commerce clause can not be used to force people into commerce. And he let the bill stand under Congress' power to tax. This achieves numerous things.
First, he side-stepped a political landmine. Whether he approved the law or not he was going to be vilified by someone. He ruled on the constitutional question, not the bill. Very clever. But he did much more.
He placed a limit on the use of the commerce clause. This is a very important legal precedent. Courts had been heretofore very lenient in allowing this clause to be expanded. Now we are done with that. You can regulate commerce in its name, but not force it to occur.
And last, he allowed the bill to stand only by it being funded by a tax. Well, that's true of numerous parts of the bill. There are all sorts of taxes and fees built into the bill, but the big one is now the 'fine', levied through the IRS for those who do not buy insurance.
One amy say that is fair, and I'm OK with that. What it allows, however, is the regulation of the bill via reconciliation, or by the 'selective enforcement' being practiced by the Obama administration. By simply not collecting the tax, the bill falls. Or it can be de-funded by reconciliation. If not, those who vote for it are voting for a tax increase of enormous proportions, the largest in history. I want to watch the democrats lining up to do that.
Roberts was brilliant. He articulated constitutional law, his job. And he left the bill up to the politicians, handing them a self-exploding dung bomb. First one to operate the law gets covered in foul chocolate mousse.
So I am all in favor of what was done, and I can't wait to watch the food fight of putting the bill into action. And if the republicans get control of the senate, not impossible at all, then the bill never gets funded.
'The Marriage of Figaro' contains a great line- Senz'avocato hai gia vinto la causa. Without a lawyer I have just won our case.
Roberts is the opposite. With a single legal decision he has reinforced the Constitution and made a political trap.
Good man.
Ted
Oddly for a doctor, I favor federal health care as a centralized service. I do so not because I want a bigger government but because I want more available health care at a lower cost that pays more efficiently. Private insurers build in a 20% profit while claiming a 2% margin. That's all accounting legerdemain. They are making a fortune, as witness the salaries of their CEOs. Federal care would have raised taxes but lowered overall spending, because the government has an administrative load of about 2%, and no profit. And if you think you don't pay for the care of the uninsured now, think again. That's why the prices are so high on so many thing- in part to pay for the burden of caring for millions without coverage.
Anyway, this is not about Obama's healthcare bill. It was a bad bill, pledged in advance to pharmaceutical companies and the insurance industry. And it had a mandate to buy insurance or pay a fine. Opponents considered this an outrageous extension of the commerce clause, while supporters considered it a reasonable extension of the same. Here is where Roberts is brilliant.
Federal powers have been expanded under only two headings- 'promoting the general welfare' and the commerce clause. The latter gives Congress the power to regulate the commerce between the several states. This power was granted (yes, that's the right word- our Constitution was meant to hold most power for the states and the People. We're a long way from that) to the federal government because of the mess of interstate laws made by each state. Each state had its own tariffs, its own MONEY, its own list of proscribed goods from neighbors. The federal government was given the sole power to regulate all of this, just as it was given the power to create a uniform currency.
The image of interstate commerce has broadened considerably. It now includes the regulation of trucking companies, radio programs, TV and the internet, since all of these represent commerce done between states. And I think all of that is quite correct, if we are going to have regulation of these things at all. (and I think we must). But the commerce clause has never been used to force citizens to buy something. This is an extension of power that is simply unprecedented. Just like the taxes hidden all through the Obama bill, this was a federal power grab of the very first order, as big as that of the creation of Social Security or Medicare.
The general public does not see these things and really doesn't seem to care, sort of like the ingredients at McDonald's. No one is interested as long as it tastes good and is cheap and fast. But enough people read the bill, and did care. They objected to the perfectly ridiculous way in which it was rammed through Congres, with leadership actually saying the bill had to be passed to be read. Wow. Well, enough about machine politics at a national level. The Constitution.
This was the constitutional question in front of Roberts' court- can you use the commerce clause to force people to buy things. Roberts did something I think is extraordinary and subtle. He clearly and unequivocally articulates that the commerce clause can not be used to force people into commerce. And he let the bill stand under Congress' power to tax. This achieves numerous things.
First, he side-stepped a political landmine. Whether he approved the law or not he was going to be vilified by someone. He ruled on the constitutional question, not the bill. Very clever. But he did much more.
He placed a limit on the use of the commerce clause. This is a very important legal precedent. Courts had been heretofore very lenient in allowing this clause to be expanded. Now we are done with that. You can regulate commerce in its name, but not force it to occur.
And last, he allowed the bill to stand only by it being funded by a tax. Well, that's true of numerous parts of the bill. There are all sorts of taxes and fees built into the bill, but the big one is now the 'fine', levied through the IRS for those who do not buy insurance.
One amy say that is fair, and I'm OK with that. What it allows, however, is the regulation of the bill via reconciliation, or by the 'selective enforcement' being practiced by the Obama administration. By simply not collecting the tax, the bill falls. Or it can be de-funded by reconciliation. If not, those who vote for it are voting for a tax increase of enormous proportions, the largest in history. I want to watch the democrats lining up to do that.
Roberts was brilliant. He articulated constitutional law, his job. And he left the bill up to the politicians, handing them a self-exploding dung bomb. First one to operate the law gets covered in foul chocolate mousse.
So I am all in favor of what was done, and I can't wait to watch the food fight of putting the bill into action. And if the republicans get control of the senate, not impossible at all, then the bill never gets funded.
'The Marriage of Figaro' contains a great line- Senz'avocato hai gia vinto la causa. Without a lawyer I have just won our case.
Roberts is the opposite. With a single legal decision he has reinforced the Constitution and made a political trap.
Good man.
Ted
I'll be honest, a lot of that went way over my head, as things relating to politics generally do. But the other day, we visited the American Embassy here in Austria and talked about how they interact with the government, and of course one of the issues brought up was health care. What we learned is that in Austria, health care is cheap. Cheeeeeap. Or free. And available to anyone. The downside, though, is that there are very few specialized doctors. So general healthcare is great, but if you need, say, a kidney transplant, you're going to have to travel, and pay, and pay some more. And their taxes are relatively high, but in exchange they get free healthcare, public transportation, and almost impossibly low tuition to universities. We also learned that the U.S. is number one in healthcare specializations. I don't know if there is a happy medium to achieve at least something of this healthcare, because I certainly don't want specialized doctors to go away, but it would also be nice to have a more available healthcare.
ReplyDeleteDare I say it...perhaps what's happening in the U.S. IS the happy medium??