A Voice in the Wilderness In Defense of "Mere Conservatism"

Show Us Your Mandates: And Other Obamacare Thoughts

By: R.J. Moeller

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It's a little presumptuous on my part to put "By: R.J. Moeller" at the top of this post because very few of my own original thoughts will be included in it.  Just because I barely went to one semester of law school (which I enjoyed so much that I had already applied and was accepted to seminary before that semester ended), don't confuse me with a legal scholar.  What I am is a guy with some very smart friends and a job that allows him to spend a great deal of time reading and listening to smarter people than himself.

I'll start off by saying that no matter what else is delineated here below today, I am utterly disappointed with the ruling (on the whole).  If you just take a step back and look at what might have been a mere 24 hours ago had Justice Roberts ruled differently, it's hard not to be.  But I'm a conservative, so I spend little time on "what if's" and more time on analysis of what happened, and moving rapidly toward the all-important question: "Where to from here?"

A friend of mine (who shall remain nameless due to the restrictions of his job in the legal profession) sent myself and a few others a thoroughly impressive summation of yesterday's events and implications.  I'm going to quote extensively from his correspondence and trust that you'll see why I'm thrilled to be able to do so.

"Five hours and 193 pages of dense legal writing later, permit me [a few] points:

(1) What a great moment for our Republic to see citizens actively engaging the appropriate contours of our constitutional structure....That's awesome.  And I think the opinions, particularly Roberts, were written to be citizen-friendly as possible, given the limits of legal writing and reasoning.

(2) Roberts' followed what lawyers call "the presumption of constitutionality" (see his discussion on pages 31-32).  The generally accepted starting point is that laws passed by Congress and state legislatures are constitutional -- the burden is on the challenger to prove otherwise.  But there's nothing in the Constitution itself that mandates that presumption -- the presumption is a judicial creation that reflects the commitment to deference and judicial modesty (and judges' lack of sophistication about what makes good policy).  Some liberals abandon that presumption and operate without a presumption -- they just do what they think aligns most with "constitutional values" (the preferred liberal phrase these days, replacing "the living constitution.").  Randy Barnett, the leading libertarian legal theorist...proposes a "presumption of liberty" -- he thinks that we start with freedom, and the legislature has the burden to prove when this infringement on liberty or expansion of government is necessary.  I think the future of the conservative legal moment is a non-presumption attitude that goes straight to the text (a commitment which, as I say, is the foundation of the three pillars mentioned above).  We just ask straightforwardly, "How does this situation comport with the original meaning of the text of the Constitution?"  Obviously considerations of prudence and precedent mean that we don't strike down the Dept. of Education tomorrow, but it would represent a shift toward a primary emphasis on text, since public meaning originalism is the common ground today between Bork and Barnett.

(3)  The Medicaid decision is a real win for federalism, and this should not be lost amidst the focus on the mandate.  States cannot be treated as local administrative divisions of the federal government, period.  They are independent sovereigns, and they have the right to refuse participation in a cooperative-funding program they don't like.  And Congress can't radically change the bargain on the program mid-way through.  The Court has never set a limit on the spending power before vis-a-vis the states ... This is a big win for states, especially because so many programs are cooperative-funding (transportation and primary/secondary education are the two biggies besides Medicaid).

(4)  We should not overestimate the size of the win on the Commerce Clause.  I am more sanguine about the Roberts' opinion than [others may be]....Roberts' opinion refers to the Commerce Clause power as "broad" and "expansive."  He reaffirms the continuing vitality of Wickard, which is the bugaboo of every legal conservative.  Because so few laws regulate "inactivity" by mandating the creation of "activity," I highly doubt this will represent an enduring challenge to the modern regulatory state.  This is a win, for sure, but only because it drew a line at the way-far-out boundary and because none of the academics thought this argument serious even six months ago.

(5)  There are a few things worth noting in Ginsburg's opinion for the liberals.  First, at pages 12-14 she makes a short originalist case for a broad reading of the Commerce Power, quoting Madison, Washington, The Federalist Papers, and the 1787 Convention Records.  It shows you how far we've come that the liberals try to justify their result using originalist sources.  Also, Ginsburg shows some respect for federalism -- she spends a lot of time discussing the reasons that individual states cannot fix health-care on their own because of transient populations that move based on state-funded benefits.  Oh, and her limiting principle is definitely just "hey, health care is unique" (see page 28 of her dissent).

(6)  This is not the end.  This is the end of the beginning.  There will now be a massive wave of litigation against ACA if it is not repealed subsequent to the 2012 election.  The HHS mandate is one example.  The provisions funding abortion services is another.  The structure of the exchanges will be challenged.  The structure of the independent payment board will be challenged.  And in a 2700 page bill that was a drafting disaster, there are doubtless dozens of other avenues that will lead to lawsuits.  This law will be back in court pretty promptly.

Finally, could Congress have crafted a more Orwellian term for the tax/penalty than "shared responsibility payment"?  Seriously."

I think what you just read speaks for itself. After consuming my friend's meaty email, and after he sanctioned any and all use of it (save that we keep his name off of it), I knew anything I lamely attempted to write would be insulting to elucidation of complex ideas and concepts everywhere.

So let me (hopefully) help you out even more by directing your attention to a few of the other reactions/commentaries to the SCOTUS decision yesterday that I found particularly compelling:

• First, there is the one and only Dr. Charles Krauthammer with a piece called "Why Roberts Did It."  This one's short and sweet and to the point.
• Next, there is this column from Sean Trende of RealClearPolitics.com with his "The Chief Justice's Gambit" submission.
• Lastly, our good friends at Ricochet.com had legal scholars/professors John Yoo and Richard Epstein as the featured guests on their weekly podcast yesterday and you'd be hard-pressed to find better, more entertaining explanation/analysis.

My final and closing thoughts go something like this.  Obamacare was sold to the American voting and tax-paying public explicitly NOT as a tax, and yet it's now been upheld because it apparently is a tax.  This should be a wake-up call to everyone.  There are busy-bodies in this country who want to radically transform things. If you think sitting idly by and wagging your finger at other people in your life who are actively engaged in the arduous task of self-governance is going to bring about a better nation - then we're finished. I don't meant to sound melodramatic, but things don't remain the same simply because you put your head in the sand. We're either getting better as a nation, or we're getting worse.

So what part do you need to play in all of this? Is your problem REALLY that you spend too much time learning history and reading books and discussing pertinent issues? Or is it something else that keeps you from entering the fray?

Regardless of how anyone feels today, these sentiments from Justice Roberts are pretty hard to argue with:

"Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices (Majority Opinion, p. 12)."

This one's now on us - on the American voter.  Get involved. Get informed. Elections have consequences.

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Oh, and in case you don't buy the whole "Obamacare was NOT sold as a tax back in 2009/2010" line from we conservatives and libertarians, then feast your pretty eyes on this: