Tag archives: Health Care

Summary of Oral Arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corporation v. Sebelius

by Travis Weber

March 27, 2014

The post-oral-argument predictions in the Hobby Lobby case will continue to pour out as various entities (more or less interested in the outcome) make guesses about which way the Supreme Court will rule now that the justices have had a chance to quiz the attorneys for each side. The truth is, no one knows what will happen. Nevertheless, several things were noteworthy and other things not noteworthy, about this morning’s arguments. My review of the arguments (with emphasis on noteworthy sections) is below (page numbers are those listed on the Supreme Court’s official transcript).

Arguments began with Paul Clement, the attorney for Hobby Lobby and Conestoga, presenting his clients’ case first. After some initial questions about whether Congress meant to include corporations within the Religious Freedom Restoration Act’s (RFRA) protections (pp. 4-9), the justices’ opposition to Hobby Lobby’s position predictably centered on what other claims corporations might bring should the Court rule for the Green family and against the government. Justices wondered whether a ruling for Hobby Lobby would lead to corporations objecting on religious grounds to providing vaccinations, blood transfusions, and the like. Hobby Lobby’s attorney Paul Clement disputed this implication, pointing out that the Court could be trusted to wade through these issues under RFRA. Furthermore, if the “parade of horribles” was likely to occur, where was it? RFRA has been around since 1993. Clement pointed that none of the claims over which the justices expressed concern had been brought (or they were brought but didn’t succeed) “notwithstanding the fact that the government concedes that sole proprietorships and partnerships and nonprofit corporations are all protected by RFRA” (pp. 14-15).

Clement was then questioned about how a corporation could exercise religion (pp. 17-21), but the argument drifted off into a discussion of what costs Hobby Lobby would incur if it refused to cover the contraceptives (pp. 17-29). A discussion subsequently ensued about grandfathered health plans, and then moved to the concept of burden shifting between the objecting employer and its employees (pp. 29-38). Clement noted that exemptions are allowed in the conscience law context — if a doctor objects to providing an abortion, the woman is not prevented from obtaining the procedure, but she must go to another provider (p. 38). Clement also pointed out that the government has available to it a less restrictive alternative than the current HHS mandate — allowing employees of objecting corporations to go on the exchanges and subsidizing them like it does for employees at companies with fewer than 50 workers (p. 40).

At this point, the government’s attorney, Solicitor General Donald Verrilli, took over and opened by arguing that the requested accommodation’s impact on third parties must be examined (pp. 43-46). He was then pressed by the justices on why the government insisted on hampering for-profit corporate religious exercise but not other religious exercise (pp. 46-49). When Verrilli said the Court had never ruled that corporations had a right to exercise religion, Justice Alito asked if “there’s something about the corporate form per se that is inconsistent with [a] free exercise claim” (p. 46). He followed: “Do you agree … that for­profit corporations must do nothing but maximize profits, they cannot have other aims … including religious aims?” (p. 47) Verrilli said no, but the point was made.

Verrilli then argued that ruling for Hobby Lobby would permit other problematic claims (pp. 52-53). He was pressed about the ability of corporations to have a racial identity (which courts have held), but said such a scenario was different from this case, which involves “exercise of religion — something the courts have never recognized corporations can do (p. 54). However, neither have the courts said corporations can’t engage in religious exercise. He was then pressed by Justice Kennedy about exemptions being given by the government apart from RFRA concerns (pp. 56-58). Verrilli explained that churches were exempt (as they have always been considered special under the law), but argued that the other companies and groups that do not have to pay were not actually subject to “exemptions” but were just categorized differently under the law (pp. 58-59). He was then pressed to explain when the grandfathered plans would end (pp. 59-60) — such continual “grandfathering” with slow and piecemeal implementation demonstrates the lack of a compelling government interest in enforcing the HHS mandate.

Justice Breyer then questioned Verrilli and asked him to explain how the government might meet the contraceptive needs of women less restrictively than enforcing the HHS mandate (pp. 64-69). Justice Kennedy quizzed Verrilli and said that according to the government’s logic, it seemed that a for-profit corporation could be forced to pay for abortions. Verrilli had to admit his logic allowed such a result, but he attempted to minimize the implication by noting there was no such law mandating abortions on the books at this time (p. 75). He followed by pointing out that the federal and state laws regarding abortion don’t consider the “particular forms of contraception” at issue in this case to cause abortions (pp. 75-77).

Verrilli had trouble batting away hypotheticals from Justices Alito and Breyer showing the problems corporations may face in bringing religious exercise claims (should the government win in this case) challenging laws banning kosher or halal slaughter methods (pp. 78-81). He concluded by pointing out that companies were going into the public sphere, and this would be the first time a company could be permitted to override statutory benefits under a Free Exercise or RFRA claim (p. 81). At the last moment, Verrilli was questioned by Justice Scalia about the government’s claim that it was not drawing a distinction between for-profits and non-profits (p. 82). Justice Scalia quite rightly noticed differences with how the government was treating the two groups (p. 82).

Paul Clement then had the last word. During his few minutes of rebuttal argument, Clement pointed out that Congress has applied the abortion conscience laws to all providers, including for-profit providers. But if Congress changed those laws, the government (according to its argument today) would take the position that RFRA does not apply to protect providers objecting on conscience grounds (p. 83). Clement also reminded the Court that if the government is going to burden religious exercise, its regulation has to do so in the least restrictive way. In this regard, Title X already provides for contraception coverage, so the government could provide contraceptive coverage through Title X (pp. 83-86). He also reminded the Court of one point Hobby Lobby already made in its brief — the government could simply pay for the contraceptives (p. 86). Clement concluded by noting that Congress has already spoken in an abundantly clear manner on the issue of religious freedom when it passed RFRA, but “[h]ere the agency has decided that it’s going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear” (p. 87).

With that, the arguments were concluded. A written decision in the case is expected in June 2014.

Who would want to get married today?

by Robert Morrison

November 25, 2013

With the mounting concerns over the “debacle” of ObamaCare, with Iran given permission to retain their nuclear program provided they “freeze” just certain portions of it, the world looks like a threatening place. So, who would want to marry and bring children into such a world, beset by economic worries, dogged by environmental concerns and living as we do under what President Kennedy called “a nuclear sword of Damocles”?

Well, things didn’t seem a whole lot brighter in 1978. Thirty-five years ago, my fiancee and I prepared for our wedding in San Francisco. The weather that entire week was gray and menacing. So somber was the mood. Hundreds of bodies were being returned to the Bay Area from Jonestown where people had been forced to drink poison Kool-Aid. The aftermath of that suicide cult hung over the city like a pall. Then, too the day after we exchanged our vows in dear old St. Paulus Evangelical Lutheran Church, we began our honeymoon in an Alpine village in Southern California’s San Bernardino Mountains. It was there we saw the news. San Francisco’s Mayor Moscone and Supervisor Harvey Milk had been assassinated.

The first good news we had from the outside world came on the third day of our getaway. We sat at a picnic table surrounded by snow-covered mountains and saw the newspaper headlines: “Pope on a Slope.” Pope John Paul II had been elected just six weeks earlier. There was great excitement around the world for this dynamic new leader on the world stage. Even as non-Catholics, we shared in the enthusiasm for the Polish Pope. Whoever heard of a Pope who skiied?

In the thirty-five years since that wedding day, we have had the usual portion of joys and sorrows. We have endured the loss of beloved parents and the death of a 16-year old cousin. We have had to cope with financial gains and losses. Was there something in those vows about for “not-so-richer or poorer”?

I had always been taught that a man should lay down his life for his wife. And I was prepared to do just that.

So imagine my surprise when I found my wife saving my life. I had just turned forty when I was stricken with a violent headache. It felt as if there were nine-inch nails being driven into my skull.

Rushed to the Emergency Room at Bethesda Naval Hospital, my wife, an officer in the Medical Service Corps, waited in the ER with our two small children for long hours for a diagnosis. Despite the lateness and the children crying in the summer’s heat, my wife pressed them to give me a spinal tap. The test results confirmed that I had viral meningitis.

Told there were no beds available for me at the hospital, my wife stubbornly refused to let me be taken to a local civilian hospital. She has often said that she wasn’t sure we had insurance for such treatment, but I know she did not want me taken to a place where she did not know the medical staff and their reputations. Emphatically, she told them she was a staff officer and knew there had to be a bed somewhere in the giant facility.

I awoke several days later in the Neuro Step-Down Unit. I was surrounded by dying patients. Naturally, I assumed I was one of them. It’s an experience you tend to remember.

Some time later, when I was out immediate danger, the navy doctors and my wife crowded around my hospital bed in their crisp, starched whites.

He’ll have short-term memory lapses. He’ll be emotional. And irritable,” they told her. Not skipping a beat, my beloved shot back: “And the difference I am supposed to notice in him is what?” One of the best ways to cross that threshold back from death’s door, I submit, is a good laugh.

Throughout our marriage — when children and grandchildren came and when we were earnestly praying for their safety — we remembered the words of that Polish Pope when he was first brought out onto the balcony of St. Peter’s in Rome. I had not heard the words, but read them from the clickety-clack of a teletype machine as it printed its message on a roll of yellow paper. I was on board our Coast Guard cutter, in the middle of the Bering Sea, about as far away from Rome as you can get.

The Pope spoke to the City and to the World and said:

Be Not Afraid!

Those words sustained us in our marriage. After four hundred twenty months of marriage, those are words I would still share with today’s young people: Trust in God and trust in your love for each other. Go ahead boldly and be not afraid.

Sebelius and Transparency at the Energy and Commerce Committee Hearing

by Bethany Brock

November 1, 2013

On Wedneday morning, HHS Secretary Kathleen Sebelius testified before the House Energy and Commerce Committee on the roll-out debacle of Obamacare. Chairman Fred Upton (R-MI) called the members of the Committee to order and stated that the purpose of the hearing was to “achieve fairness for the American people, and transparency” in the flawed launch of HealthCare.gov.”

Americans were assured that their experience would be equivalent to other online experiences such as booking a flight or ordering pizza,” Upton said as he looked straight at Health and Human Services Secretary Kathleen Sebelius.  “Today’s hearing is about fairness for the American people who are losing their coverage or seeing their premium skyrocket as high as 400 percent,” Upton said.

Once Sebelius was sworn in and seated before the Committee, the room stilled, reporters positioned cameras and prepared notepads, and all waited with anticipation.

In the summary of her written statement, Sebelius apologized for the flawed launch of HealthCare.gov. She agreed that the flawed launch was a “miserably frustrating experience,” and affirmed the American people that they deserved better. In addition to reporters, interns, and Hill staffers attending the hearing, the members of the gallery ranged from veterans wearing Vietnam or Korea ball caps to tourists who came to the hearing in jeans and tennis shoes.

Questions from members of the Energy and Commerce Committee ranged in topics from the security of Americans’ personal information, the cost of the creation and the maintenance of the website, the lack of freedom in choosing health care options, to how the HHS plans to deal with the November 30 deadline for nationwide coverage.

When Rep. Marsha Blackburn (R-TN) asked a question about the cost of the website, she requested that it be pulled up live. As everyone looked towards the screen, HealthCare.gov appeared with a page saying that the system was down.  Blackburn asked for a ballpark price for this disabled website; and Sebelius reported that this non-functioning website cost $118 million and has cost an additional $56 million to fix so far. This report was met with a noticeable rise in tension and awkward glances around to gauge others’ reactions.

Overall, the atmosphere of the room was inquisitive and people seemed genuinely interested to get answers on the Obamacare .

One question, however, that didn’t receive a clear answer was Rep. John Shimkus’s (R-Ill) transparency question. Shimkus asked if the American people would be able to see which healthcare plans in the federal exchange offer abortion coverage, and if Sebelius would provide committee members a list of these plans.  Sebelius said she “thought” she could provide a list and when pressed further said, “Sir, I can’t tell you what I don’t firmly know right now.” As the time expired, and the floor was given to another congress member for questioning, this question was left with an unsatisfied silence.

Three Cheers for the Santa Clara Broncos (and not for a sports victory)!

by Rob Schwarzwalder

October 16, 2013

Santa Clara University, a Jesuit school located at the southern end of San Francisco Bay, “is dropping coverage for elective abortions under health insurance for its faculty and staff members.”

According to the Los Angeles Times,Santa Clara president Michael Engh, himself a Jesuit, wrote the school’s 1600 employees that “Our core commitments as a Jesuit, Catholic university are not compatible with the inclusion of elective abortion coverage in the university’s health plans.”  Reporter Larry Gordon notes that “as required by state law, the school still will cover contraception and so-called therapeutic abortions, those deemed medically necessary to save the mother’s life or health, among other factors. Santa Clara, which enrolls about 8,500 students, is not offering the possibility of the unsubsidized plan for elective procedures, according to campus spokeswoman Deepa Arora.”

SCU follows the lead of Loyola Marymount University, whose faculty and students last week were informed in a letter signed by university president David W. Burcham and Board of Trustees Chair Kathleen H. Aikenhead that “Catholic heritage and faithfulness to the Catholic Church’s core teaching on dignity of every human being at all stages of life” mandates that it drop coverage of abortion on demand.  Instead, the school will “offer employees a separate, unsubsidized plan to cover those procedures.”

The academic natives are more than restless over these changes: “This really makes Santa Clara University’s express commitment to openness, diversity and inclusiveness ring hollow,” said one SCU history professor.  And Loyola Marymount economics professor Jennifer Pate says the decision demonstrates that LMU “values diversity less than our Catholic affiliation.” 

Diversity, properly understood, simply means that opposing points of view concerning important issues are allowed to flourish.  For example, there are a host of opinions about how best to alleviate poverty and they are welcome as part of the atmosphere of inquiry and debate intrinsic to a college campus.  Diversity does not mean that all preferential practices (you abort a baby, I mainline heroin - hey, everybody’s different!) should be permitted. 

Why?  Because, in the case of abortion, the unborn child is not merely a collection of blood, tissue and DNA.  From the moment of fertilization, the tiny embryo is a person who should enjoy the most fundamental right of a person - the right to life.

Santa Clara and Loyola Marymount have taken modest steps to distance themselves from abortion.  It would be hoped that they would soon join with schools like The Catholic University of America (Washington, D.C.), Ave Maria University (Florida), and Belmont Abbey (South Carolina), and other Catholic and Evangelical Protestant colleges in suing the Obama Administration because it requires them “to violate (their)s deeply held religious beliefs or pay crippling fines of up to $15,000 dollars per day, or more than $5 million per year.” 

For now, let’s applaud the SCU Broncos and the Loyola Marymount Lions for bending the arc of political correctness in the direction of life.

What Would and Wouldn’t Shut Down

by Rob Schwarzwalder

September 30, 2013

A “government shutdown” is a misnomer of gigantic proportion. In July, U.S. Sen. Tom Coburn (R-OK) released a Congressional Research Service study that makes clear “a ‘government shutdown’ does not cause all government functions to cease.”

Our military will remain vigilant, our ships at sea and our planes ready to fly, and our service members will be paid. According to a study by the Congressional Research Service published last week, “Historically, individuals responsible for supporting the nation’s global security activities, public safety efforts, and foreign relations pursuits have been excepted from furloughs that accompany a government shutdown.”

The federal judiciary will be funded through mid-October. Veterans and recipients of Medicare, Medicaid, and Social Security will continue receiving their benefits. You’ll still get your mail from the U.S. Postal Service.

There will be massive inconvenience to hundreds of thousands of civilian government employees who will be furloughed until a budget deal is reached. Mortgage loans will halt, although “the Office of Single Family Housing will ‘endorse new loans under current multi-year appropriation authority in order to support the health and stability of the U.S. mortgage market’.” Federal parks and zoos will close, but “Smithsonian and National Park employees responsible for protecting property and providing emergency care, including animal caretakers at the National Zoo, are exempt from the furlough.” And TSA employees and air traffic controllers will remain on the job.

National Institutes of Health employees would continue to treat current Clinical Center patients and provide animal care services, though new patients will be locked out of clinical research,” and federal disaster assistance will remain fully available. More than 40 million Americans would continue to get food stamps unabated.

As to the IRS, why should it be no surprise that “all payments would be processed?”

Perhaps the most serious problem will be “A lack of appropriations (that) will severely limit the Centers for Disease Control and Prevention’s ability to respond to outbreak investigations.”

The Food Safety and Inspection Service would continue all safety-related activities” and “the Grain Inspection, Packers and Stockyards Administration would continue inspections to the extent they’re paid by user fees.” However, the “inability to investigate alleged violations could hamper corrective action in the long term and could have an immediate impact on members of industry.” The FDA “would limit its activities but continue to monitor recalls and conduct investigations.”

Of perhaps particular note is that funding for the Patient’s Protection and Affordable Care Act (“Obamacare”) will continue. “It’s looking more and more like Tuesday will be a split-screen day … Obamacare will open for business.”

The above is not an exhaustive explanation, and it is not intended to suggest that limiting government services is trivial. However, if Congress and the President fail to strike a deal, the sky will not fall, Mt. Rushmore will not crumble, and our union will retain all 50 of its states.

Concern is justified. Panic isn’t.

Sources:

FRC in the News: February 6, 2013

by Nicole Hudgens

February 6, 2013

Hot Off the Press: Tony Perkins on CNN News

FRC’s President Tony Perkins, was on CNN this morning discussing the Boy Scouts of America’s (BSA) vote that would allow open homosexuals to become members and leaders. Perkins points out that the BSA has stood for moral principles for decades and that the boys should not have to worry about being with men or boys who are attracted to them. The BSA is designed to help raise boys into manhood. The Associated Press and the Washington Post has just reported that the BSA will not vote on the decision until May. Please be in prayer for the BSA that they would stand firm in their timeless values. You can share the ad from FRC via email, Facebook, Twitter and any other favorite media sites!

When it Comes to Religious Rights, “Accounting Gimmicks” Won’t do!

After the outcry of “foul play” from religious organizations, the Obama administration is offering a proposal which will allow faith-based organizations to be exempt from paying for contraceptives. Churches and synagogues can choose not to provide contraceptives. However, “non-profits with religious affiliations” are not exempt. Anna Higgins, FRC’s Director for the Center of Human Dignity, was quoted in a recent CBS News article and stated that:

“The accounting gimmicks HHS is now proposing under the latest regulation fail to satisfy the religious freedom protections that exist in other current laws and in the First Amendment of the U.S. Constitution”

How to Really Help the Economy: Save the Family

Dr. Patrick Fagan, Senior Fellow and Director of the Marriage and Religion Research Institute (MARRI) at FRC, wrote an insightful article in The Public Discourse. Fagan’s research shows that even if the best of conservative economic plans were put into action, it still would not be enough to fix the economy. We must promote solid marriage, which produces solid children and productivity. As Fagan states:

“The intact married family with children is the household that generates the productive work, income, and savings that purchase houses, food, cars, and clothing, use energy, send children to school, and save for college and weddings.”

FRC in the News: February 5, 2013

by Nicole Hudgens

February 5, 2013

Looking at the Boy Scout Ban from an Eagle Eye’s-View

FRC’s Government Affairs Intern, Lance Clevinger, wrote an article featured in The Washington Times from his unique perspective—that of an Eagle Scout. Clevinger describes his journey to earning the highly esteemed award that is based on character. He challenges the Boy Scouts of America to stand on their timeless values and show the boys what true character is: bravely standing strong for what is right.

Schwarzwalder to Boy Scouts: Stand on Principle and Don’t Bow to Pressure

Rob Schwarzwalder, Senior Vice-President at FRC, discusses how the Boy Scouts of America (BSA) should stand for morality in his article featured in The Christian Post. Schwarzwalder quotes the BSA’s handbook which states:

‘“While the BSA does not proactively inquire about the sexual orientation of employees, volunteers, or members, we do not grant membership to individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA.”’

Schwarzwalder also talks about how the BSA was founded on “a Judeo-Christian moral structure” and therefore should continue to promote these important values to their youth.

Boy Scouts: Will They Stand Strong for Timeless Values?

Watch our new video that questions whether the Boy Scouts will stand strong for timeless values, especially in light of their leadership considering changing the policy to allow homosexuals to become troop leaders. Also, visit our webpage and learn how you can take action today.

Obamacare and the Long Road Ahead

FRC’s Senior Fellow for Religious Liberty, Ken Klukowski, writes about the Obamacare HHS Mandate losing in the courts in his article featured on Breitbart’s website. As Klukowski states, “there are now at least 12 HHS Mandate cases in the federal court of appeals.” All of these court cases challenge the regulation requiring that employers who have a total of 50 employees or more “must offer healthcare plans that include birth control, sterilization, and abortion-related services.”

Evangelicals and Catholics Together? You bet.

by David Christensen

July 18, 2012

You may have heard about multiple Catholic organizations suing the government over the contraceptive mandate which forces religious organizations that are not churches to provide free abortifacients, contraceptives and sterilizations in their health plans.

But this isnt just a Catholic issue, as many protestant denominations have spoken against the threat of religious freedom this mandate poses.

Today, Wheaton College, an evangelical college, joined The Catholic University of America in yet another lawsuit. Wheatons President, Dr. Philip Ryken, describes the contraceptive mandate this way:

Wheaton College and other distinctively Christian institutions are faced with a clear and present threat to our religious liberty.

To read more, see Wheatons press release.

Freedom Rising

by Robert Morrison

July 2, 2012

I was standing in the room where Abraham Lincoln drafted the Emancipation Proclamation when I heard the news. I was visiting the Lincoln Cottage with some good friends from Scottsdale, Arizona, when we got the word: The Supreme Court had upheld President Obama’s takeover of health care and John Roberts had written the majority opinion. I was shocked. My first thought: Now all Americans’ freedom is in danger. The good work of President Lincoln in jeopardy. A government of the people, by the people, for the people cannot be reconciled with an all-embracing health control regime that issues mandates.

Some conservatives are taking consolation from the thought that Roberts said no to using the Commerce Clause as a means to bind us by government edicts. This is cold consolation. If Congress can do this through its taxing power, what can it not do? All a Pelosi Congress would have to do is to define an activity, craft a penalty for Americans not engaging in that activity, and have it upheld under this precedent as a tax. How can this measure be a tax when those who wrote it, those who introduced it, those who defended it, and those who voted to pass it, all vehemently denied that it was a tax? And if it is a tax, why did it not have to originate in the House of Representatives? My copy of the Heritage Guide to the Constitution makes it clear the Founders wanted to keep “power of the purse” in people’s House as a check on the power of the more aristocratic Senate.

Is this too silly an obstacle? Is this too basic? John Roberts muffed the administering of the Oath of Office to President Obama. Might we imagine he overlooked this little detail, as well?

My friends are telling me that this volte-face by Roberts is “not as bad as Souter.” Really? I was in the room when Souter was approved by the Senate Judiciary Committee. I remember well looking over to pro-life friends as they shrugged their shoulders. Souter was a blank slate. This non-entity, this squirrelly recluse from the New Hampshire woods, was never a man in whom we placed any hope or confidence. And when this nowhere man was confirmed, I crossed my fingers, hoping that Gov. Sununu of the Granite State knew better than we did.

I was soon disabused, however. The Saturday after he was confirmed, my wife handed me a clipping from the Washington Post “Style” section. It said Justice David Souter had asked the clerk at the supermarket in his new Georgetown neighborhood if the can of tuna he had purchased was “dolphin safe.” Instantly, my heart sank and I knew that the fate of millions of unborn children had been sealed. Souter left Washington after twenty dismal years here, unsung and unhung.

We were assured by staunch Reaganauts that John Roberts was a committed and fearless constitutionalist. We did not expect that he would in every case rule as we would have him rule. Still, we respected his intellectual integrity. No one in 2005 dreamed that he would re-write the greatest power grab in American history in order to find it constitutional. The tortured logic of the Roberts ruling defies history and reason. And it gives every impression of having been cobbled together at the last minute in some feckless attempt to prove the Court is not partisan.

The Court should be partisan—for ordered liberty, for the rule of law, for the Constitution itself. What Roberts has achieved with this dog’s breakfast of a ruling will only hold the Court up for renewed scorn. After nearly forty years of Roe v. Wade, after the slaughter of fifty-five million innocents, one might have thought there were more important considerations in the minds of a learned jurist than the prestige of his “eminent tribunal.” Apparently not.

Many political commentators are giving Roberts credit for playing chess while we mere mortals play poker. He is being described as a clever Machiavellian who knows how to energize the conservative base for the November elections.

If that is true, why should we respect him as the honest and dispassionate “umpire” he vowed under oath that he would be? His duty was to rule whether this law could be reconciled with the Constitution we revere. He failed manifestly do to so. If any of the kudos bestowed on him as a supreme politician are true, the sense of betrayal would only be sharper. The British have a saying that applies here: “Too clever by half.”

We Americans might instead identify with Theodore Roosevelt’s keen disappointment in one of his chosen justices: “I could carve out of a banana a judge with more backbone than that!”

We have no choice now but to replace those who crafted this legislative power grab, repeal the health care takeover, and restore the Constitution as the the Great Charter that guarantees the blessings of liberty to ourselves and our posterity.

On Being Taxed For Just Standing There: The Roberts Opinion on the Obama Health Care Law

by Rob Schwarzwalder

June 28, 2012

Historian John Steele Gordon makes a compelling point about todays Supreme Court ruling in the Obama health care case:

Never before, that I know of, has a federal tax been placed on inactivity. If you buy something, you pay a sales tax. If you earn income, you pay an income tax. If you do business as a corporation, you pay an excise tax. Now, if you dont buy health insurance, you pay a tax on not doing so. What else then can be taxed? Not exercising? Not eating broccoli? Not agreeing with the president?

This seems a proper interpretation of what Chief Justice Roberts wrote in the decision itself. Consider some of his opinions most compelling paragraphs:

… the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congresss constitutional power to tax.

The Affordable Care Acts requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

… it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congresss power to tax.

Where does Roberts find the linchpin of his argument that the mandate is simply a constitutionally justified form of taxation? He explains:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes … That, according to the Government, means the mandate can be regarded as establishing a conditionnot owning health insurancethat triggers a taxthe required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congresss constitutional power to tax.

Sure, redefine the meaning of terms like mandate and tax, and the phrase under that theory becomes like the accelerator on a juggernaut. The only consequence a phrase so pregnant and looming its sort of like the old line, Other than that, how did you enjoy the play, Mrs. Lincoln? Accepting that only consequence is like saying we should welcome incoming nuclear ordnance. It just makes a big noise, right?

In summary, heres how Mr. Roberts logic seems to operate:

(1) The mandate is, in fact, a tax.

(2) It is a tax on something people choose not to do, as noted by Gordon above.

(3) Congress has the constitutional authority to tax people at least those whose income Congress decides is adequately high - for something they elect not to do.

This is a phenomenal moment in constitutional interpretation: Now Congress has the power to tax a specific kind of volitional inactivity. This is amazing coming from a self-professed originalist like Mr. Roberts.

Those who believe the Constitution actually means what it says know that the taxing power of Congress extends only to those things (the Enumerated Powers) over which the legislative branch of the federal government has authority. How does something people decide not to do conceivably find its way into the Constitutions limited and specific list of federal duties?

As Gordon observes, the extension of this argument is both unlimited and frightening. If I choose not to exercise, will Congress force me to pay higher taxes because Im not doing enough to sustain my health? If I dont fly in airplanes, will I be taxed for failing to do my part for the American aeronautical industry? If I dont wear brightly-colored shirts, will I be taxed because I am insufficiently supportive of the U.S. vegetable dye industry?

However absurd such scenarios might now seem, their plausibility is strengthened by a Court that has decided that Congress possesses the constitutional authority to tax choices that involve conscientious disengagement from a particular form of conduct.

Abraham Lincoln once noted that we cannot escape history. Indeed. And when the history of this court and of our time generally is written, the new federal power - delivered with a whats the big deal? tone in the Chief Justices opinion - will be an inescapable chapter in the story of libertys diminution.

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