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People are naturally wondering why Justice Roberts changed his mind as the Court considered the decision it would render on the Affordable Care Act. Some news analysts suggest Roberts wanted to protect the Court’s reputation, and changed his vote with that thought in mind. He remembered how much criticism the Court received after it decided in favor of Bush in Gore v. Bush in 2000. He did not want to make a mistake of similar magnitude again, nearly twelve years later.

That is a bad way to make Supreme Court decisions. When you can’t please everyone – in fact, when you know you will displease a multitude no matter what you do – you can’t fall back on poor reasoning to try to save your reputation or your skin. Caution is a virtue in politics, but it is not always a blessing.

So we have to ask, how can misplaced caution be sound reasoning for a judge? The huge mistake the Court made in 2000 was being too sensitive to the public’s desire to get the whole election process over with. “We want results!” the journalists said, “We can’t let this sad business in Florida drag out.” However messy Florida’s recount, though, the Court had no authority to adjudicate a tie in that state’s presidential vote. Only Florida’s secretary of state, and the rest of the state’s electoral apparatus, held that authority. The Court should not have stepped in, and its reputation suffered because it did.

For the ACA, the Court’s place was to adjudicate the issues brought before it on appeal. We don’t pay Supreme Court justices to consider public opinion, though. We want them to craft opinions based on the Constitution, or on our Constitution and our political traditions if the Constitution alone does not give clear guidance.

Crafting an opinion that pays even a smidgen of attention to public opinion is a blunder one doesn’t expect from a chief justice. Roberts knew he would displease a lot of people no matter what he did. That’s all the more reason he should have based his opinion on sound legal reasoning. Apparently Justice Kennedy tried hard to persuade Roberts not to change his mind – that is, to side with the Court’s conservatives. I wish we knew the reasons Kennedy gave in his arguments.

The Court faced a difficult political problem. First, ACA supporters and opponents are as deeply divided as any two groups can be. Compromise did not seem possible during the legislative struggles of 2009, and it certainly has not become more likely over time. ACA supporters say the Court should not strike down a law this consequential merely because it is imperfect. ACA opponents say the Court should not uphold a law that is so imperfect it is bad law.

Roberts recognized this problem, of course, and his majority opinion reveals his response to it. The two factions – ACA opponents and supporters – each wanted the decision to go their way, and their initial reactions to it would be based on whether their side won or lost. Over the longer run, though, people will judge the Court based on the quality of its reasoning, not whether the referee found for the home team or not. To find for the home team – that is, uphold an existing act – Roberts had to call a penalty a tax. To take a lemon and prescriptively redefine it as a pomegranate in order to get the outcome you want is just slipshod and not worthy of any court, let alone the Supreme Court.

Since we’ve been talking about the politics of the Court’s decision, we should consider its impact on the presidential campaign. Obama has a difficult problem now. Romney and the Republicans want to make a big deal out of the ACA between now and November. They already have. Obama can take the attacks in silence for four months, or offer a vigorous defense of the Act. Given the results of the 2010 congressional elections, he has chosen not to defend the act, except in court, for the last year and a half. If he suffers in silence this summer and fall, he stands a good chance of losing in November. Offering a vigorous defense might appear more risky, but may yield his best chance of a second term.

My own negative judgments of the ACA are well developed in other posts. I imagine I would not be so critical of Roberts or his reasoning if I liked the ACA and wanted to see it preserved. In fact, the Democrats cannot be altogether pleased with the Court’s decision. The majority opinion found that the Constitution’s commerce clause does not give Congress authority to mandate purchase of health insurance. The commerce clause is the justification the Democrats have used to give legitimacy to the law’s the individual mandate.

As the Court rejected the commerce clause rationale, it changed the mandate’s fine for non-compliance from a penalty to a tax. Congress has authority to lay taxes of any kind, so the Court found that the individual mandate and the ACA more generally meet constitutional requirements. Nevertheless, Democrats have never wanted to defend the individual mandate’s fine for non-compliance as a new tax. As one article said today, the Democrats just want to change the subject, even though they won. If they can’t change the subject, or find some way to placate voters’ anger about the ACA, they’ll have to undergo a long and painful presidential campaign.

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How many times did we hear during the health care debate in 2009 that thirty million people in the United States don’t have health insurance? Every time I heard that statistic, I asked, So what? What is the breakdown? How many of that thirty million don’t want health insurance? How many of that thirty million don’t care one way or another? How may would like to have insurance if they could get it, but aren’t that concerned about going without? Lastly, how many people don’t have health insurance, and wish strongly that they could obtain it?

Interestingly, the people who cited the statistic did not show any interest in questions like that. The number was enough. For advocates the size of the number mattered: the more Americans uninsured, the more urgent the need for reform. You can beat down the opposition if you repeat a number like that often enough.

The advocates for reform never did address the so what question, but after their triumph in early 2010 they began to reveal their thinking a little more candidly. You saw more references to the Massachusetts plan after the bill passed. Massachusetts originated the idea of an individual mandate to achieve nearly universal coverage in 2007. The reformers held up the Massachusetts plan as their model in 2010. Look what Massachusetts achieved with their health care reform: we can accomplish the same thing all across the nation.

I live in Massachusetts. I can tell you that RomneyCare is not a model for the rest of the country. It has not achieved what its advocates said it would achieve. Neither does it have any prospect of success. Yet people look to this plan as a reform model for all the other states. Why would that be?

I want to say something that reveals my prejudices, but I’m not sure that’s helpful. The fundamentals of the Massachusetts plan come from the mind of a pointy-headed professor at MIT. Whenever I learn that a professor conceives something that’s supposed to work in the real world, I know it’s destined for failure. I used to be a professor. Professors don’t have any idea about the real world. That’s why they’re professors. That’s my prejudice, based on my experience as a professor. People who teach at academic institutions do a lot of good work, but devising reform plans that change real institutions for the better is not something academics do well.

I heard the reasoning behind the Massachusetts plan on the radio not long ago. The simple-mindedness of the reasoning dismayed me somewhat. Ordinarily I like simple explanations and simple reasoning. It’s elegant and rapidly carries you from premises, through connections and reasons to conclusions. Simple reasoning won’t do for health care reform, though. It just won’t.

The main goal and motivation for health care reform in Massachusetts was to cut costs. Health care was too expensive for everyone: for individual patients, for taxpayers, for the state government, for the insurance carriers, and of course for health care providers as well. Everyone involved stood to gain from making health care in Massachusetts more efficient and therefore less costly. The state government in particular stood to gain a great deal, as its outlay for health care expenses greatly exceeded its resources.

The professor at MIT reasoned this way. If you want to pay for an expensive health care system, you have to expand the number of people who pay to support it. High quality health care, after all, is a collective good. If you have too many free riders, the cost becomes unbearable for the people who actually pay. That’s how professors reason. They think in terms of collective goods. If you see health care as a collective good, you have to solve the free rider problem in order to make the system work for all participants. To solve the free rider problem, you have to force people to participate. Thus the individual mandate.

How does an individual mandate contribute to lower costs? If you bring all parties together in a health insurance exchange, the purchasers of health insurance have more bargaining power than they do under the current system. Therefore they can keep prices lower, or at least keep them from rising so rapidly. That’s the reasoning. Universal coverage means greater bargaining power.

I don’t want to criticize the Massachusetts plan or the reasoning that underpins it here. I did that at length in another article. I do want to point to the intellectual dishonesty of that statistic we heard so often. When you cite a number – or any piece of evidence, for that matter – so often that it becomes a cornerstone of your argument, you owe your listeners an explanation. You can’t cite your argument over and over, and presume that its significance is self-evident. You have to answer the so what question.

Advocates of health care reform would difficulty were they to explain why thirty million uninsured is a significant number. They would have to break the number down to see why people are uninsured, whether they want to be uninsured, or whether they even care. Advocates of health care reform take the desirability of universal coverage as a given. That’s obvious enough. Once you take universal coverage as your goal, however, you can’t use the number of uninsured to show why the goal is desirable. That begs the question.

Here’s why. If you reason forward from the number of uninsured, you would include analysis of people who are insured as well. If you reason backward from the desirability of universal coverage, you would compare systems that have an individual mandate, or some other means to ensure universal participation, with those that don’t. If you do both, though – if thirty million uninsured becomes your reason for advocating universal coverage – you bypass all analysis and comparison. Your argument is self-contained because you don’t look at anything else. If thirty million uninsured is a bad thing, then of course universal coverage is a good remedy.

Here’s where we rest. Honesty leads to the truth. Dishonesty leads to disaster. When lawmakers and leaders say they will make health care less expensive for employers and for individuals, but enact a plan that does nothing of the sort, that’s dishonest. When lawmakers and leaders say they will make health care more rational and efficient, easier for all participants to understand and navigate, they ought to do so. If they enact legislation that instead makes health care more complicated and costly, that’s dishonest.

The dishonesty started with the initial statistic of thirty million uninsured. Health care reform advocates didn’t appear to care that much why thirty million people lacked health insurance. Yet they made that high number their rhetorical centerpiece. Advocates wanted universal coverage, no questions asked. You want to know why thirty million is unacceptably high, why we should have an individual mandate to bring the number to zero? Don’t answer questions like that. Honesty won’t get you anywhere.

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As the health care debate came to its surreal end earlier this year, I had to remind myself that I was from Massachusetts. That was bound to color my perspective. But honestly, nothing Massachusetts has served up prepares us for what we’ll see if we try to implement a similar system country wide.

When the Massachusetts plan took effect in 2007, I thought: what do you expect? This is the People’s Republic of Massachusetts. This is the same place where rich people in Cambridge still think it’s okay to have rent control. One stupidity leads to another. For all that, I never thought Democrats in Congress, and Democrats who support the Democrats in Congress, would be so stupid as to enact a plan like the one they did. Completely blind to their foolishness, they even pointed to the Massachusetts plan as a model for federal health care reform!

The Massachusetts plan is a slow motion train wreck, to be kind about it. It’s supposed to save money, but of course it costs way more than the state can afford. The plan is supposed to make health care accessible, but access to regular health care is still endlessly complicated, especially for people who don’t have employer based health plans. The plan is supposed to be comprehensive, but people who are unemployed, who may be employed part-time or seasonally, or who work as independent contractors are stuck with financial burdens difficult to bear. God help you if you don’t have a regular job with benefits. The state will come after you to make you pay a fine for not having health coverage.

Even more significantly, the state wrangles with health insurers about coverage for small business employees. The insurers put in for something like 268 specific rate increases for small business plans. The mere number of applications suggests the level of detail in the state’s oversight. Well let the negotiations begin. The state denies most of the requested increases. The insurers say we can’t cover our costs at the old rates. The state says, “Tough, sell the insurance at the old price.” The insurers object that they can’t do business at a loss. The state says, in effect, “You’re just a bunch of money grubbers anyway, and we’re going to make you sell this insurance.” You can see where this dispute is headed: nowhere. Meantime the small business employees must wonder if they’ll be fined for not having health insurance!

We’ve seen this kind of thing before. The state comes in saying it’ll make things better, and it makes things worse. It says it stands for the little guy, and the little guy gets crushed. It says it’ll take care of all the complications – all the rules and oversight and management of financial transactions – and it leaves another costly trail of failure, disappointment, and questions about how things could go so wrong.

Remember how the congressional leadership crowed when health care reform passed? They pointed to Medicare as a wonderful first step, to the Massachusetts plan as the future of health care, and to their own legislation as a crowning success. They hugged and smiled and overflowed with good feeling for each other. Just ten months later, the same members of Congress are up for reelection, and they’re not so smug and smiley anymore. Some of them will lose their seats because of their stupidity. Whatever happens in the November elections, we have to get rid of this health care reform, fast. Some three million people may have to live in the People’s Republic of Massachusetts, but do we want hundreds of millions in the entire United States to suffer a similar loss of freedom?

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Obamacare is Unconstitutional – Part 2

So, let’s see, towards the end of last year both houses of Congress passed a form of health care reform despite close to sixty percent of Americans being opposed to both bills.  A few weeks later, the usually liberal voters of Massachusetts in a true sign that the polls were not lying about America’s opposition to Obamacare, essentially replaced the late Godfather of the Socialized Medicine Movement in America Ted Kennedy with a candidate that vowed to defeat the president’s far-left scheme for health care.  Scott Brown’s victory took away the Democrats’ 60th seat in the Senate thus rendering them impotent in overcoming a Republican filibuster that would certainly have been employed to derail Pelosi, Reid, and Obama’s dream of European style health care in the U.S.  There was utter panic in Washington.  Schemes were devised to thwart the will of the people and those evil Republican fat-cats.  We heard talk of deem and scheme and reconciliation being used to circumvent the Constitutional mandate of an up or down vote.  Eventually, Nancy Pelosi devised a way for the House to approve the Senate bill with amendments that the Senate could vote on through reconciliation sparing them the need for 60 votes to end debate.

It seemed the Democrats were able to do the impossible – pass an unpopular bill that has eluded them for close to 100 years without any Republican support and 22 Democratic defectors.  And they did it without even violating the Constitution.  Ah, but not so fast.  Article 1 Section 7 of the Constitution reads, “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”  The Senate bill which has revenue raising provisions in it, namely a new Medicare payroll tax, an excise tax on “Cadillac insurance plans, and a tanning tax, did not originate in the House as the Constitution requires.  Thus, Obamacare is unconstitutional.  Those compassionate politicians really ought to read the fine print before they do us anymore favors.

Now, I am not naïve enough to believe that any court would invalidate the new health care legislation based on the above Constitutional violation.  That is where we find ourselves in 21st Century America – with a federal government that would rather pull a fast one than live by the rule of law.  As I have argued earlier and will argue again here the whole piece of legislation that has come to be called Obamacare is unconstitutional on many levels.  Under Article 1 Section 8 health care or anything close is not one of the enumerated powers of Congress.   Anything that is not an enumerated power of Congress is left to the states under the 10th Amendment.

Of course, liberal interpreters of the Constitution always ignore what they don’t like and cite those clauses that they say gives Congress the ability to do whatever.  For the sake of not being redundant, we will move on from our discussion of the “general welfare” and “necessary and proper” clauses that we had last week and instead focus on a another clause big government types like to misinterpret – the interstate commerce clause.

This clause also found in Article 1 Section 8 simply says, the Congress shall have power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes…” It was included in the Constitution in reaction to the failure of the Articles of Confederation in preventing states from erecting protectionist trade barriers against each other.  Essentially, the clause gave Congress the power to ensure a free trade zone between all the states.  No less than the Father of the Constitution, James Madison confirmed this in an 1829 correspondence with Virginia politician Joseph C. Cabell,

“Yet it is very certain that it grew out of the abuse of the power by the importing       States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.”

The interstate commerce clause did not give Congress the power to enact minimum wage laws, worker safety regulations, Social Security, health care legislation, or the thousands of other statues Congress has enacted through the years.  As a matter of fact, Madison also confirmed this in Federalist Paper 45,

“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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

The above text blows a huge hole in the argument of statists that the Constitution is a liberal document that gives wide discretion to Congress to provide for us from cradle to grave.  According to Madison, whose fingerprints are all over the document, no far-reaching powers were ever given to Congress.  In essence, Congress was given jurisdiction over “war, peace, negotiation, and foreign commerce” while the states had jurisdiction over “the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”  Under this definition, health care falls under the domain of the states.  Of course, that is where it has been until Obamacare.

I understand that through the history of this country the Congress has taken great liberties (no pun intended) with regard to passing unconstitutional acts and the Supreme Court has let it.  But, Congress has never required Americans to buy a product or service from a private provider.  The Court must strike this provision of Obamacare down otherwise Congress’ power would become virtually limitless.  Getting away with violating Article 1 Section 7 is bad enough, but if the Court allows Congress to get away with forcing Americans to purchase a product ultimately at the end of a gun barrel, then we are further along the road to a fascist state then I even imagined.

Kenn Jacobine teaches internationally and maintains a summer residence in North Carolina.

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