Supreme Court to hear arguments on Obamacare: An enigma, based on a canard, wrapped in a conundrum.

Enigma, based on a canard, wrapped in a conundrum!

March 26, 27, and 28 2012, become the next significant dates in the future of the Affordable Care Act (ACA or Obamacare).  It is on these dates a little over two weeks from now that the Supreme Court will hear arguments both challenging the constitutionality of part of the legislation and arguments as to why the court should uphold the legislation. For most of us on both sides of the aisle, involved in the debate over healthcare reform, we see this as an enigma, for widely opposite reasons, as to how we have arrived today at this point.

For those of you that are interested in this current debate, you can find a number of places to read the arguments, or you can simply read someone else’s interpretation of the arguments.  Here, are some links:

My advice to you is, don’t rely on others interpretations, read the source documents for yourself.  Everyone, including me, are bringing their own bias to their review; some unintentionally, many intentionally.  This has become the partisan issue of this decade.  None of these arguments is a simple read for the non-lawyer.  I would argue that it is the view of a non-lawyer, the view of a common citizen that is now most required to be heard.  The lawyers now are so wrapped up in the history of all judicial actions, and their arguments are both driven by, and necessarily constrained by, the rulings that have preceded; the legal principle of stare decisis—Latin for stand by the decision—the obligation for the court to uphold what has gone before.  It is now, that someone, not a lawyer, needs truly to ask what is the right principle.

As James Madison wrote, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” This
constitutionally mandated division of authority was “adopted by the Framers to ensure protection of our fundamental liberties.”

I am not a lawyer, and I have my own biases.  I write this, not to tell you what to think, but to tell you how I have chosen to understand this issue.  I hope you will use this as a stimulus to plot your own quest for an answer.  We are at a point in our history that if we do not reengage as citizens, in an active role, in the formation of our governance, we will find that the government that we end up with, will be consumed by forces we do not want, nor can we afford.   The power of our “constitutional republican” form of government is based that the power comes from the people, is enacted by our representative people (the extension of us, not a special or elite class), and is for the benefit of us, the people. We are now at a critical juncture, where we, as a people, need to review the decisions we have allowed to be made and expanded like weeds in an uncultivated field, over the past seventy years.  We need to determine if what we now have accurately reflects what we intended; and if not, we need to no-longer allow the subtle expansion, and extension of federal powers, to continue indeterminately.

I am not arguing if we do, or we do not, agree with the constitutionality of the mandate in the Affordable Care Act.  That argument should come, but it needs to come after we determine if the precedent decisions, beginning with the pivotal case of Wickard v. Filburn reflect what we intended: and if it does not, then the pending arguments will continue to leave us sliding down the slope.  If it does, then we all must now accept the ramifications and understand the fundamental change to our current constitutional republican form of government that will fall out of these next actions.

For a review of the historical actions that have led to the current belief that the Federal Government can enact such a law, feel free to read my prior articles: Health Care Mandate and the Commerce Clause Articles, Entitlement vs. Safety Net: It’s not a matter of degree!, U.S. District Court of Appeals “Reaches” for the answer to the purchase mandate, and ACA, Politics, Mandates and the Commerce Clause.

The Arguments

As the Patient Protection and Affordable Care Act was passed, the controversy and the challenge began immediately.  Within hours of passage, states’ legislatures and attorneys-general began filing actions to block its implementation.  Some of these actions were new state laws that helped limit the laws effect.  But, the more effective challenges were the suits filed by the states to block the federal law’s implementation.

Numerous arguments were originally made to challenge the law.  Arguments that the act violated the constitutional right of privacy, violated the free exercise of religion, and even violated the thirteenth amendment prohibiting slavery, along with many others, were made.  As the cases have moved through the judicial system, the plethora of arguments has continually been pared down to a remaining few.  In a little over two weeks, the Supreme Court has agreed to hear a subset of the original arguments.

There are now two main questions pending from the original challenges and two additional questions posed by the court itself.

  • Remaining Questions
  1. Does the Individual Mandate clause exceed congress’s enumerated powers?
  2. Does the expansion of eligibility of Medicaid to include all legal citizens less than 65 years old and earning less than 135% of Federal Poverty Level (FPL)—approximately $37,500.00 per year—force the states to implement what is federal legislative power thereby violating the separation of powers principle?
  • Additional Questions
  1. Does the Tax Anti-Injunction Act bar the court from hearing the case?
  2. Is the mandated coverage constitutionality question severable from the remainder of the act?

Supreme Questions

In reading through the briefs and the summaries, available through the links above, I see the arguments breaking down this way. On the side to overturn the legislation, the arguments are framed as to whether, or not, the original intention of the commerce clause in the constitution, grants this right to the federal government, or does it remain as a right of the people i.e. the individual states.  The arguments for the act to be upheld seem to me based on legal tricks and gimmicks to justify the extension of the power based solely on the extensions that have gone before.  Perhaps this is not fair but I believe the fundamental question needs to supersede those decisions that have gone before, with which I think most Americans would also disagree.  I think it is mere trickery to cite one bad ruling as the basis for another if the root decision is in question.

Despite the tricks and histrionics on both sides, the basic argument comes down to, is it the federal government, or the state government, that have the authority to enact  legislation governing personal behavior.  The main argument for this federal right is the precedent cases, not the root argument of what the Commerce Clause actually means.  For me, it is this framing of the debate that is now the problem.  If the arguments are bound by the principle of stare decisis, then I believe the logical conclusion will be a 5 to 4 decision in favor of upholding the mandate in the ACA.  If the issues revert to the principal determination of whether, or not, the commerce clause was framed to grant any of the rights, now assumed by precedent, to the federal government, then I think we will have a 5 to 4 decision overturning at least the mandate portion of the law.  And, without the mandate, most believe that the ACA law becomes moot.

The secondary argument made by those in favor of the mandate follows the “everything now is interstate commerce” logic because if people do not conform to this mandated behavior then their actions become a fiscal drain on the rest of us, because either the industry, or the government now must go provide for their needs, and the cost will get passed back to the rest of us.  But, this argument is a canard.  The cost to us for lack of action by others is a real cost, but it is predicated by a government action of over forty years ago that mandates that we are going to provide the services in the second place when the individual fails to take appropriate steps to be responsible for their own needs in the first place.  By the way, I am not talking about eliminating a safety net.  We need a safety net!  Safety nets should be provided for the helpless.  What we have today is not a safety net, it is an entitlement, and while some helpless get benefit, predominantly it is providing support for the clueless and the worthless.

The recent Birth Control debate is a timely example.  Forget the religious argument; this is mere political theater at this point.  The argument goes like this.

Someone, employers or insurance companies, i.e. us due to cost shifting, must pay for birth control for women because it costs too much and they cannot afford it.  They will have sex and some will get pregnant.  They will then have babies because they cannot afford, or do not want, to get abortions. Then the government will have to pay to birth these children and support the mothers and their children causing a larger fiscal drain than the cost of birth control itself.

This is a canard because the requirement for the cost for the voluntary pleasurable act of sex, a biological drive, that may result in pregnancy and birth of a child, only places the cost of birth and support of the mother, and child, on us, because we have chosen to accept the responsibility of these costs in the first place.  I am not arguing whether or not we should do this.  I am simply saying we made a choice to do this, and to take the responsibility for the act off the participants and place it squarely in our collective laps.  To swallow the argument that one now begets the other is to believe that the requirement for us to absolve the participants of their personal responsibility and accept the burden of their actions is somehow inviolate and must remain so for all time.  This is simply false.

The humanistic, moral and ethical implications aside, we should be under no perpetual obligation not to revisit the original decision as to who is responsible for what in society.  There are many other cultures around the world that do not accept this responsibility at all, and often these acts result in poverty, pain and in some cases death to mothers and children.  We choose to be more humanistic, and believe ourselves more moral and ethical, and have chosen to believe that we are obligated to support those that will not support themselves.  Understand I am not arguing we should not do these things, I am just pointing out that this decision is both cause and effect on many others we now face.  It is political gamesmanship to present one side of a justification as fait a compli, this is routinely done in the body politic these days, and often fools us into limiting the debate and choices, yielding ineffectual results.

Another argument by the supporters of the ACA is based on the following quote,

“Opponents of the health care law say that if it is upheld, then government can force people to buy an American car or eat broccoli.  But, a person can opt not to drive a car or eat vegetables: no one realistically can opt out of health care.”

This argument follows, what is called in sales, “the Reverse Ben Franklin Close.”  In effect, this technique is geared to obscure the argument, by saying that you can be forced to buy a car and to eat broccoli if you are also forced to buy healthcare insurance, but unlike the others, you do need health care.  In effect, leaving the impression that they are not equivalent and therefore, the worry is not valid. The technique, not the argument, obscures the real issue.  Yes, you almost certainly will need healthcare as you live, and your need will grow proportionally to the length of time you live. But, the argument is that we have to pay for your healthcare not the fact that you need healthcare and don’t need broccoli or to drive.  We don’t pay for your car or vegetables.  That is ultimately the key question.  It is not the benefit of the ACA. The question is, at what point does a safety net come into play to serve the needs of the helpless.  How do we define the helpless?  And, how do we filter out the burden of the clueless and the worthless? Currently we have chosen to propound the philosophy that all people are now entitled to healthcare, regardless of their personal choices or life planning.  We do not as yet entitle people to a car of free vegetables.  The worry by some is that this is coming next.

Does the Individual Mandate exceed congress’s enumerated powers?

This question has become the key question and the key argument for, and against, the viability and continuance of this legislation.  Is the federal government authorized to require citizens to purchase health care and in effect penalize them in the form of a tax or a penalty if they do not buy insurance?  The crux of the argument, for this federal power, is a U.S. Supreme Court case that was argued in 1942, Wickard v. Filburn, 317 U.S. 111.  I have written about the case in my article, Health Care Mandate and the Commerce Clause. I will not rehash the case here but encourage you to go read the article and read the link to the case.

In reading this case, and the other cases that piggybacked on top of Wickard to justify the expansion of federal power, I have come to my own conclusions.  As you read those articles, you will find clearly what I believe.  The question is not what I believe, it is what you believe, and more importantly, what do we, the people, believe is the appropriate border line between where the state’s power begins and the federal power ends.

Does the expansion of eligibility of Medicaid to include all legal citizens less than 65 years old and earning less than 135% of Federal Poverty Level (FPL)—approximately $37,500.00 per year—force the states to implement what is federal legislative power thereby violating the separation of powers principle?

This issue in the end is a non-issue.  The crux of this argument hinges on one of the same tenants as the Mandate—where do the federal powers end and the state powers begin.  This argument began at the formation of the constitution in Philadelphia, and has continued to rage since the formation of the government, and the election of George Washington as the first president.  It was the main factor in the initial fractionalization of the founding coalition government in Washington’s first term, into one that had the federalists, headed by the strong central government vision of Alexander Hamilton, on one side, and the republicans, headed by the anti-monarchists, state’s rights principals of Madison and Jefferson, on the other side

Medicaid is a federal program.  In fact, Medicaid is an extension of Social Security, as is Medicare.  But, if you listen to the current administration they want it both ways.  On the one hand, the president calls Medicaid a state program, but, on the other hand, he wants the federal government to set the rules.  The state governors clearly and uniformly call Medicaid a federal program, and since it is breaking the banks of the states, would prefer to remove the expense from their books.  The conundrum is because in 1965, as President Johnson was framing the extension of the Social Security Act, the legislators know that they had to make Medicaid a “state” program or it would violate the separation of powers principles.

Does the Anti-Injunction Act bar the court from hearing the case?

This argument was raised in the case I discuss in U.S. District Court of Appeals “Reaches” for the answer to the purchase mandate.  In essence, there is an argument that the court should not be able to hear the case, because this act prohibits courts from preemptively enjoining any federal collection of tax revenue until after the revenue is collected.  The base argument is the court cannot enjoin the federal revenue stream until there is real harm.  I actually think the premise of this argument restricting courts below the Supreme Court is valid.  This act provides a check on the courts by eliminating a mechanism where lower courts could effectively shut down the federal government by strangling its cash flow.  I do not feel the same way at the level of the Supreme Court, in that, if it also binds the Supreme Court, the law would grant an unequal power to congress to prevent the Supreme Court from ruling on the constitutionality of some laws prior to harm being done. The Supreme Court is supposed to be the peoples effective check on the powers of congress to create bad law. I don’t think most of the justices are inclined to agree that Congress can pass a law that prohibits them from reviewing congressional actions.

Is the mandated coverage constitutionality question severable from the remainder of the act?

This is another interesting set of arguments and important to those arguing for and against the legislation.  When congress wrote this law they specifically excluded a clause that would allow for any section of the code that was found unlawful, or unconstitutional not to affect the other provisions.  So, on the face it would be argued that it was the intention of congress that all part of this law stands together, and if one part falls they all fall.  Of course, the counter argument is that since there is no statement that says that it all stands as one and it is not dividable on the merits then it must be severable.  I believe this argument is window dressing for the most part.  I believe the justices will rule with a significant majority that the law is severable.

In the end, the main piece is the Mandate. If the mandate falls, for the most part, the law falls.  If the mandate stands, than the law stands: another step in the additional extension of power to the federal government will occur and despite the contrite arguments from both sides, this new precedent will become the stage for another expansion later on.  If the mandate stands, Hamilton and his federalists would have been thrilled, and Madison,  Jefferson, and their republicans, would have been horrified.

The conundrum is that despite our best intentions, intelligence, humanity, economic analysis, and strong convictions, we have now created a major problem based on fundamental disagreement over what the founders intended and whether we are to stay true to this intention or if we should feel free to change it at will.  Frank Zappa once said, “The crux of the biscuit is the apostrophe!”  (There may be a few of you that actually know what this was in reference too, and for those that do, I apologize for the original context. If you know feel free to post in the comments area. I will post the explanation in a few days if others do not.)  I am using the statement to illustrate that the apostrophe of this conundrum is at the point that helping some people becomes detrimental to all people.  Spock said to Kirk, “Sometimes the needs of the many outweigh the needs of the few, or the one.”  This is a loaded statement, as the needs of the many may be affected in very dangerous and deleterious ways by catering to the needs of the many.  Sometimes, as in this case, society gets to the point where the definition of what is needed needs to be clear and it is imperative to prioritize the fundamental needs and eliminate the extraneous wants.

In the end, we are faced with an enigma, based on a canard, wrapped in a conundrum!  I hope we have the national and personal character to address the problems and find real resolutions.

 Note: I hope this article at least provides a process for you to seek your own answer.  I am sure once again we will be much divided, but perhaps the arguments can become fundamental and appropriate, and no longer tangential, and irrelevant. I ask you to come back and post your thoughts in the comment section.

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I long for a Citizen Politician

Where have all the good men gone?

As I watch the current primary political spectacle, and await, with more than a modicum of trepidation, the coming presidential election of 2012, I long for the emergence of a “citizen politician” like those that founded, what once was, this great nation.  Where have they gone?  What has happened to our national values, that we no longer can produce such remarkable and dedicated individuals?  Have we so corrupted the elegant system, designed by the framers, that we simply cannot find those truly fit to serve the nation, instead of serving their own, or some subgroups desires and wishes.  Has the process been so corrupted that the simple citizens we most desire, and who would best serve, will not stand up to our current infinite scrutiny, or will not run because they do not want such public ablation of their character? We once had a collection of people, who felt that it was either their destiny, or their obligation, to serve their neighbors to build a better life for all, and to develop systems to assure that character, integrity, and nobles oblige, were the justifications for their fitness.

Recently, I have wondered, what were the characteristics that defined this group of remarkable men, those who risked and sacrificed so much to build this nation? Over the past year I have read a number of biographies of our founding fathers; men like George Washington, Thomas Jefferson, John Adams, James Madison, Alexander Hamilton, and Benjamin Franklin.  Each in its own way revealed bits of what united these men in such a grand and ambitious undertaking.  In another way, it has led me to wonder if we still have the tools in place to create others like these men, or if the circumstances of our modern world, our changed mores, faith, family, values, and education system have been altered so profoundly that we no longer build the necessary combinations of character, strength, conviction, patriotism, and dedication to generate leaders with a sense of purpose, responsibility, and faith in something grander than themselves with unshakeable and selfless commitment to their country and fellow citizens.  I guess the real question is, are we lost?

Our First President

George Washington was a complicated and interesting man.  All of us, who have studied history in modern schools, have read about Washington as the father of our nation, but the image of Washington that I learned in school both understates his contribution to the birth of this nation and fills our head with minor and false facts (like the story of the cherry tree) that do not provide a true measure of the man. To the continental colonists at the end of the revolution, George Washington, was more than any other, the father of this nation.

As the country was being forged, Washington, and many others just like him, felt a profound sense of duty to the rest of Americans to fight to the death against tyranny and eventually to build a great form of government to perpetually protect the nation’s people from the resurgence of tyranny from both abroad and within.  Today, we often hear as to what the framers felt was the role of faith and God in the creation, prosperity, and future of our nation.  Today, in our modern world of agenda based spin, we hear polar opposite views.  On the one hand, it is stated that the founders believed there is no role for religion in government.  Religion was not to have any part in the governance of the nation. And at the fringe, there are those that profess that it is a violation of the constitution to even allow and discussion, mention, or intimation of religion in any public venue, action, or event.  On another hand, we hear that religion is a clear part of our government, and became the basis for the governing system we chose. Further, at the fringe of this side, we hear that this, or that, religious view was inculcated into the constitution to promote this or that moral value.  Like everything else today, the truth is much more complicated than a sound-bite, and lies somewhere, nuanced, in the middle of the argument.

President Washington felt that National Policy needed to be rooted in private morality, which relied on “the eternal rules of order and right . . . ordained by heaven itself.” It was in consideration of the grand opportunity wrested by the sacrifice of the American people, through the providential victory of the revolution against England, that Washington’s held the view that this opportunity was granted by the unknown machinations of an almighty God. Washington wrote, “The sacred fire of liberty, and the destiny of the republican model of government are justly and considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.”

Washington and many of the other founders were big believers in the hands of some higher power guiding them to their destiny.  They also felt that only good and just men could reap the benefit of these grants from some higher power.  They believed in strength, justice, and the power of courage and conviction.  They were humanists, who felt it was their duty to help the downtrodden and the weak.  But, we should not confuse this humanistic view with their additional view that people were also individually responsible for their own destiny and lot in life.  As an example, Washington also wrote,

“Of all the dispositions and habits which lead to political prosperity; religion and morality are indispensable supports.”

Washington also wrote,

“Let no one go hungry away . . . provided it does not encourage in them idleness.”

The New Constitution

In 1787, as the continental congress was meeting to establish the foundation for a new and necessary form of government to control this new nation, there was significant controversy.  Read either of the recent biographies of George Washington, Washington, by Ron Chernow, or of John and Abigail Adams, First Family, by Joseph Ellis and you will see that the current level of histrionics, division, diatribe, and intrigue are nothing new.  Further, most of America had no knowledge of what was transpiring inside the State House in Philadelphia, in 1787, or what kind of government was being developed by the men who had assembled to compose our new nation.  The mystery was so complete that after the vote by the members of the congress in approval of the new constitution, Benjamin Franklin reportedly was approached by Elizabeth Powell as he left the State House.  When she saw Franklin, she is reported to have inquired as to what form of government had been produced by the members inside the convention.  Franklin responded, “A republic, madam, if you can keep it!”

Like politics today, this new constitution was not immediately revered by all.

George Mason, a friend of George Washington, declared that the new form of government “. . . would end either, in a monarchy, or a tyrannical aristocracy.”

Looking at the current state of America and its politics I think many would argue it has met Mason’s fate. It just depends on which side of the political spectrum one is, as to whether or not it is now ended as monarchy or tyrannical aristocracy—Occupy Anywhere anyone?

Citizen Politicians

I think we need to find a way to alter the current political selection process, and fundamentally eliminate the position of professional politician from our culture and revert to the original concept of government of the people, by the people, and for the people.  The “by the people” part was not designed to be rule by a professional political class as we are today.  Just what was the concept of citizen politicians at the time of the founding?

Many of the founders regarded any open interest in power as unbecoming of a gentleman. As a result, people like Washington, Adams, and Jefferson preferred to be drawn reluctantly from private life by the irresistible summons of public service.  Ron Chernow writes in his book, Washington, “George Washington felt even to say the word, president, or to merely broach the topic, even in the strictest confidence with friends would seem to betray some secret craving for the office on his part.” Chernow reports that Washington confessed his quandary to Alexander Hamilton in a letter where he said,

“For situated as I am, I could hardly bring the question into the slightest discussion, or ask an opinion, even in the most confidential manner, without betraying, in my judgment, some impropriety of conduct.”

John Adams and most of the founding presidents, all felt that nobles oblige, should be the guiding sentiment for their service.  As such, they did not believe that a candidate should campaign for the office.  They felt that people should be elected because their prior contributions and actions were so remarkable, as to render the populace unable to see any another as capable of assuming and performing in the office. As such, it was the fact that they had to go and actively campaign for such a position of power innately under-scored their lack of suitability for the job in the first place.

The solemn and grave nature of properly taking this almighty gift of independence and effectively creating and implementing a new government, worthy of the people who had sacrificed so much for this opportunity, led James Madison to create a strong metaphor for Washington to use to captivate the populace.  Madison wrote,

“. . . to be shipwrecked in sight of the port would be the severest of all possible aggravations to our misery.”

Meaning, that after we had collectively sacrificed so much, cut our ties to England, and now were left with such difficulty and strife if we fail to provide a just form of government for the people would just be the worst sort of failure and pain.  Madison’s view was predicated on the sacrifices and misery suffered by the new Americans in 1787.  How much more has been sacrificed and suffered in this quest to live up to our potential, and love of country and its promise in the past 225 years? Are our current politicians living up to the sacrifice of those who have gone before?

Nobles Oblige Often Led to Financial Hardship and Ruin.

For most of the first 152 years, elected public service was a significant economic burden. Many left political office with their business and personal financial interests in significant disarray.  These individuals accepted the service to their nation as a patriotic duty or to establish a historical place for their family name.  As an example, at the time Washington became our first president, his prior service in obligation to the needs of his forming country had left is estate on the edge of financial ruin.  As he was being elected president, he was left with no choice but to put his extensive land holdings in Ohio up for sale and to seek a loan of 500 pounds from Captain Richard Conway of Alexandria Va. Shortly after he made this initial request, he had to ask for an additional 100 pounds from Conway, to defray the cost of moving to New York and the cost of lodging so he could assume the new presidency.  So committed to the service to his nation, Washington still felt it was his duty, as he had throughout the Revolutionary war, to forgo any salary. Despite his dire fiscal situation, Washington informed congress of his intent.  Luckily for Washington, congress insisted that he accept his salary, so in some small measure, the fiscal burden was somewhat ameliorated.  Once again, when Washington left office, his personal fortunes had continued to suffer as a result of the demands of service to his country.

The Coming Storm

As I look at this year’s presidential primary election, and listen to both sides of the debates, I wonder if we have, in Madison’s words, been left shipwrecked in sight of our port.  I find myself more and more longing for a Washington, an Adams, a Jefferson, a Madison, a Monroe, a Jackson, or a Lincoln to emerge.  I yearn for some citizen politician, motivated by their love of country, their own nobles oblige, some sense of destiny to arise from the depths and steer us from the fate of the looming rocky shore. I desire the rise of a true citizen politician, one who feels it is unbecoming of the character of a gentleman to seek power or political office.  I know there are those who believe that in this larger and more expansive world, politicians must campaign actively and very extensively and obtrusively be in our face to gain election. I wonder, is this really and sadly the case?

We have had a few this political cycle whose names have been floated for office, individuals apparently not overtly seeking election—people like: Chris Christie, Paul Ryan, and Marco Rubio.  Each of them to date has rebuffed the invitation to lead their party in this election for various reasons.  Despite their apparent reticence, there are some who are still actively interested in wresting them as candidates to the national stage.  Despite their resistance, feigned or real, sadly, they are also firmly entrenched as members of the professional political class.  Where are the real citizen politicians?  The ones who would be dragged to this lofty, powerful perch as a result of their sense of duty and obligation?  Can we not find some method to identify them and bring them to the national attention without the need for a popularity contest composed of little more than national character assassination? Though I do which this is not the case, perhaps it is simply a pipe dream to believe once again we have and can find such men.

I now most fervently hope that we will not soon be laying plans for all of our children to be reading Daniel Defoe’s, 1919 work, Robinson Caruso, as our new national survival guide!