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BACKWARD THINKING — PART 3

Just when I thought there was no need to continue my diatribe on particle physics, the cosmos and Constitutional Law, all related concepts in my head, on Thursday, June 29, 2012, the conglomeration of quarks and leptons known to me collectively as the Supreme Court gave me an excuse to revisit two of my earlier diatribes by determining the Patient Protection and Affordable Care Act, known popularly as “Obama Care,” passed Constitutional muster.

I will begin by noting my belief that after months of suspense, bickering, and last minute guessing on the outcome, most of the electorate is now quite numb and relieved that the guessing is over, even if they don’t agree with, or understand the outcome. Having read and parsed the four (4) separate opinions that were posted, I feel the need to expound. What follows is my opinion, worth reading, if you are of a mind to, and nothing more than what it cost you to read it, which is nothing, but your time. If you wish to be compensated, in any currency other than mental diversion, for reading further, kindly refrain from doing so, I won’t pay. (Sorry, that was for the benefit of those who don’t read the fine print at the base of the web page, and might not know I disavow any and all legal relevance or worth of anything I have to say about everything.)

It has always struck me as a bit absurd, even if practicable, that the legal maxim, “Ignorance of the law is no excuse,” has survived in a country where, as I’ve noted in a prior post, there is enough statutory law, regulations and decisional law on the books in federal, state and local practice, to paper a trail that, if laid edge to edge, would take us an impressive distance towards the edge of our Solar system. No one person, of our present human construct, could possibly know all of it, yet each of our respective conglomerations of quarks and leptons are solemnly charged with precisely that knowledge — so that the slackers and cheats amongst us cannot use actual or feigned ignorance to avoid the consequences of violating one of those laws.

I juxtapose that notion to the conventional wisdom that true understanding of the construction and meaning of our federal “Constitution,” inclusive of determinations that any law in particular runs afoul of same, is relegated to the Supreme Court and a collection of academicians known collectively as “Constitutional Scholars.” Note my “pfffft” here, or tell me what talking head, academician or any other political pundit pronounced, publicly, before yesterday, that Obama Care would survive the challenge (by Attorneys General of 27 States) to its “Constitutionality” on the grounds of the federal government’s general taxing power, not the commerce clause. If you recollect as I do, the answer is “none.”

If you take the time to read it, and I urge you to do so, at least once in your lifetime, the “Constitution of the United States of America” is a relatively brief, lucid and simple document that is as effective in what it does not say as it is in what it does say. It begins with a Preamble, that states, quite eloquently in my opinion, why it exists in the first instance, to wit:

“We the people of the United States, (1) in order to form a more perfect union, (2) establish justice, (3) insure domestic tranquility, (4) provide for the common defense, (5) promote the general welfare, and (6) secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” (I added the numbering to underscore the six (6) distinct notions the “Constitution” was originally drafted to cover.)

Following the Preamble, are seven “Articles,” the first four of which have between three and ten “Sections” — that’s it. Article I provides for our “legislative” branch of government, creating a House of Representatives, to be populated by elected representatives apportioned between the States on the basis of population; and a Senate, for which each State receives two, regardless of population. This division was made to ensure that populous States had representation reflective of their size in the House, where all revenue raising (Tax) Bills must originate; and, smaller States had an equal voice in the Senate, which, inter alia, was charged with trying impeachment proceedings and ratifying treaties made by the President.

Article II provides for our “Executive” branch of government, creating a President, Vice-President and iterating the President’s duties, one of which is to “take care that the laws be faithfully executed.”

Article III provides for our “Judiciary” branch of government, creating a Supreme Court and “such inferior courts as the Congress may from time to time ordain and establish.” That last phrase is notable in that it has been construed to mean that Congress has the power to limit the jurisdiction (what a District Court or Court of Appeals may entertain as a law suit for determination) of the inferior courts.

Article IV is addressed to the individual States; Article V is addressed to the manner in which the Constitution may be amended; Article VI is addressed primarily to the supremacy of the Constitution and the federal laws enacted under it over the laws of the States and the duty of all public officials to swear or affirm to support the Constitution; and, lastly, Article VII is addressed to the ratification of the Constitution.

If you are wondering where such notions as the provisions for “freedom of speech,” “freedom of religion,” “the right to keep and bear arms,” “the right to trial by jury;” and a bunch of other “rights” are located, you will find them in the first ten Amendments to the original Constitution, known collectively as the “Bill of Rights” which were ratified in 1791, whereas the Constitution itself was ratified, by its express terms (Article VII ) on June 21, 1788, when New Hampshire became the 9th State to adopt it. Rhode Island, the last of the original 13 States to ratify it, didn’t do so until May 29, 1790.

If you are also wondering why a “Bill of Rights” was necessary at all, welcome to the world of “Mistrust of Big Government 101.”

Although you do not need a law degree to understand any of the points I make below, I digress here a bit for some commentary on “things you learn in law school” and “things you don’t learn in law school” — as they will give you some sense of where I will be coming from when I get to discussing yesterday’s decision.

In law school, if its curriculum follows the standard path to forming an aspiring lawyer’s mind, the student is exposed to courses, in the early years, formed around blocks of legal concepts — traditionally, contracts, property, torts, federal procedure, constitutional law, evidence and criminal law. “Exposure” in this case refers to reading a textbook that collects abstracts from leading cases on the subject at hand, as well as full blown decisions (inclusive of dissenting opinions.)

If one is sentinent, he or she notices very early on, no matter what legal subject one studies, no matter what the precise legal point is, there are cases that are decided in diametrically opposite fashion, by which I mean simply, some go one way, others go the opposite way in stating what the law of that case is, even on relatively the same set of facts. As all involved in the process are humans, this result should not be surprising, even though what we crave as a society is uniformity in the application and construction of our laws, if only to give us a degree of certainty when we act or refrain from acting.

Sometimes the difference in result is due to a changing perception of what is the true legal objective over time, brought about by societal changes, and some courts get with the change sooner than others. Thus, for example, in tort law, (the body of law that pertains to civil wrongs, that include such intentional acts as assault, battery and defamation; and, negligent acts, that cover a panoply of unintended but nevertheless injury causing acts, such as driving an automobile into another one or a pedestrian) we note that in the early days, intentional torts predominated over negligence, and as time and society progressed, negligence came to be the dominant claim.

In days of yore, such intentional torts as “Alienation of Affection” (wooing a married woman’s favors away from her husband’s by an amorous, intervening male) and “Breach of Promise to Marry” (essentially breaking the engagement) existed on the statutes of many States, and were “actionable” in that a Plaintiff who had such a claim could sue and recover money for the tort from the offending Defendant. Today, these claims are essentially non-existent. Even within negligence, the concept of what it covers, today, is much broader than it was 50 or 100 years ago. The notion of “products liability” (which can cover design defects, manufacturing defects and all those adverse side effects of drugs you took to cure a different problem) is a relatively recent development, and a marked change from the old notion of “caveat emptor” (let the buyer beware!)

Other times the difference was due to a fundamental disagreement, between jurists, as to what the right answer to a legal issue was. This lead to the notion of “majority” and “minority” views on a panoply of legal issues, with the respective terms pertaining to how many courts of varying jurisdictions ascribed to each. The real point goes to what, in my opinion, is the essence of lawyering, which is all about being an advocate for one’s client’s position, zealously, and despite whether you actually agree with it or not. Thus the notion, “there are always two views.” Every law suit, civil and criminal, is a reflection of that notion.

Although I do not personally practice much in the criminal law area, I understand that my colleagues who do, on the defense side of the ball, do so to put the prosecution to the test of proving their client’s guilt beyond all reasonable doubt. That is our established standard as a society, and it should be applied to every claim of violation by a defendant. Thus, and possibly in contravention of popular wisdom, a defense attorney’s job is not to prove his client’s innocence, but to ensure that if his client is guilty of anything charged, the prosecution proved so to the jury’s satisfaction, with no reasonable doubts. That once in a while an actually guilty person walks free, because guilt could not be established to the requisite degree of certitude, is the trade off to ensure that some “apparently guilty” but nevertheless actually innocent people don’t lose their freedom because of a lesser standard.

The training process in law school is intended to train the aspiring lawyer’s to be discerning between that which is fact and that which is opinion; that which is relevant to a proposition and that which is irrelevant; that which is material and that which is immaterial — in brief, to think and argue critically and with sound logic and precedent on your side. That is the goal. What we get is a different story, because often, what we see in the worth of any legal proposition is often the product of what we bring to the table, not only in intellectual skills, but our very human biases and preferences as well. In essence, lawyers (and judges) are people too, no matter how difficult that notion might be to believe.

Not all lawyers are created equal, nor are judges. Because this is so, and because at the heart of the law, at least the trial and appellate ends of it, is the art of persuasion and the virtue of judicial temperament, some lawyers are more persuasive on the same set of facts than others; and, some jurists have a better sense of what is just than others. Despite the lack of any formal statistics on the subject, that there are “surprise” verdicts reached in well publicized cases from time to time and a variety of majority and minority opinions that are reflective of differing views on a multitude of legal issues, suggests to me my assertions regarding the lack of equality amongst lawyers and judges are facts.

What they don’t teach you in law school is how to actually practice as a lawyer — you learn that on your feet; and, sometimes at your client’s expense, over time. Because actually trying a case is so time consuming and expensive, if you want to succeed on the business end of the law, you need to get real good at what you do, quickly. As you might imagine, some are better at it than others. Even when you have the facts lined up properly, the bulk of the cases in your favor, a witness that actually testifies credibly and wore clean clothes to trial every day, you can run into judges and juries that for whatever reason don’t see things your way. If they don’t, you are relegated to another great expense, that of an appeal — and if the appellate court doesn’t see things your way either, and your client hasn’t run out of money or patience or both, you can usually get to at least one other appellate court and try your luck. Wherever you run into finality in this string of possible forums, you run into my maxim, “The law is whatever the judge on your case says it is.”

I posited the foregoing because the six males and three females of our species who presently populate our Supreme Court are all human, learned the law in pretty much the same way as I described it, have widely differing beliefs as to what the law is; and, how it should be construed and applied. None of them are infallible, all of them are conglomerations of quarks and leptons just the same as you and I; and, can keep their jobs for as long as they like.

Before I digressed, I posited the question as to why a “Bill of Rights” was needed at all, suggesting that mistrust of big government was at its heart. To be more accurate, those for a “Bill of Rights” (which included such luminaries as Thomas Jefferson and George Mason) and those opposed to one (which included such luminaries as James Madison and Alexander Hamilton) were concerned with (read “feared”) a government that had the power to usurp the very rights the newly freed Americans had just fought a bloody war for independence to secure. Those opposed to such a Bill, argued that Congress can only do what the Constitution specifically gave it authority to do. Powers not granted belong to the people and the states. Accordingly, iterating rights was an open invitation to the power hungry to seek to restrict the panoply of God given rights the Founders believed all to have to merely those listed. Those who favored such a Bill, argued that absent such an iteration of the basic rights, Congress would be tempted to start passing laws that abridged them. Such was the basic lack of confidence of the governed in their government from the get-go — a notion that persists today, albeit with less of a revolutionary spirit.

Those in favor of the Bill prevailed, by adding the Ninth and Tenth Amendments, the first of which reads, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In essence, the Ninth Amendment says it’s impossible to list all of our God-given or natural rights. Just because a right is not listed doesn’t mean it can be infringed upon or disparaged by Congress. The Tenth Amendment is a reinforcement of the Ninth saying, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” That means if a power is not delegated to Congress, it belongs to the states or the people.

Before you get too comfortable with the rights the Ninth and Tenth Amendments supposedly protect, you might want to note that because of the way our Supreme Court has interpreted them, over time, they have been largely ineffectual to prevent incursions of government into the private rights of the citizenry. The most celebrated reference to the Ninth Amendment came in the opinions of Justice Douglas, writing for the majority, and in a concurring opinion of Justice Goldberg, in the landmark case of Griswald v. Connecticut (1965), where the Court found a right to privacy between married couples that led it to rule as unconstitutional a Connecticut law that prohibited the use of contraceptives.1 The Tenth Amendment has fared no better. In United States v. Sprague (1931) the Supreme Court asserted that the amendment “added nothing to the (Constitution) as originally ratified.” In 1992, in New York v. United States, for only the second time in 55 years, the Supreme Court invalidated a portion of a federal law for violating the Tenth Amendment.

If you are wondering how the Supreme Court gets to decide what is “Constitutional” and what is not, you have asked an apt question, as the power is not specified in either the Constitution or in any of the 27 Amendments made to it after its original ratification. The generally accepted answer lies in a case decided in 1803 by the Supreme Court known as Marbury v. Madison, in which Chief Justice John Marshal declared the Judiciary Act of 1789 unconstitutional, because it purported to extend the Supreme Court’s original jurisdiction beyond the express limits of same contained in Article II of the Constitution.

Those conglomerations of quarks and leptons presently presenting as “legal scholars” will hasten to point out that judges in several States as well as in the District Courts had previously exercised “judicial review” of statutes and declared some unconstitutional; as well as that the notion of such judicial review was debated during the framing of the Constitution; and, that from as early as 1610, an English Jurist, Edward Coke, had found an English statute violated “common right or reason” — but Coke’s presumption to declare a statute of Parliament void was over-ruled in 1688 when the Glorious Revolution established Parliament as “supreme.” It doesn’t matter. What does is that ever since Marbury v. Madison, the Supreme Court has been firmly ensconced as the ultimate arbiters of what is and what ain’t constitutional. When President Franklin Roosevelt found them too “anti” his views of what was the right thing to do, he tried to get Congress to increase their number to 15, to “pack” it with his disciples, but they refused.

Prior to the Obama Care ruling (and probably after as well) the conventional wisdom was that the Supreme Court could find any act of insanity perpetrated by Congress, in a regulatory sense, Constitutional, on the grounds of it being within their power to do so under what is known as the “Commerce Clause” — Article I, Section 8, which says, simply and innocuously, Congress has the power, “To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” It tests one’s credulity to understand what the “Supremes” have construed “commerce” to include.

The answer lies in a 1942 decision in Wickard v. Filburn, the facts and holding of which are simple and straight-forward. A farmer, Roscoe Filburn, was growing wheat for his own on-farm consumption. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.

The Supremes, interpreting the Commerce Clause, decided that Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce. Thus, Filburn’s production could be regulated by the federal government.

If that holding doesn’t alarm you, then you probably don’t mind the millions of pages of statutes and regulations that have deluged our society ever since.

I do mind, and even though neither I, nor anyone here today, ever discussed the matter with one of the original Framer’s of the Constitution, I am quite confident they would be horrified at where things presently stand, “Constitutionally” — if only because their entire intent at the very beginning was to prevent government from growing into the intrusive, wild spending, behemoth it has become.

The “case” that got decided by the Supreme Court yesterday, actually started out as a number of separate cases brought in the District Court of Florida to challenge the law, one of which was filed the same day the new law was signed into being by the President. The District Court found the new law constitutional, as did the Court of Appeals for the 11th Circuit.

Lying at the base of the law was the noble, but nanny-ish, notion that everybody in these United States should be covered by health insurance. Given what the Framer’s had in mind, vis a vis individual freedom, the more apt assertion should be “everybody in these United States, who wants to be covered by health insurance, should be able to procure it.” Ah, but that kind of freedom won’t do. “Why?”, you ask. Because at the very bottom of all this is good old dollars and sense. Follow me.

Who needs health insurance? People who are, or are about to be, sick. Why? Because they have to pay for their treatment. Who provides health insurance? Either the government (federal through Medicare, State through Medicaid) and private insurance companies (through unions, employers and private policies) provide the insurance. Statistically, we get sick and injured to the point of needing medical treatment in remarkably predictable numbers as percentages of our respective genders, ages, social status, occupations and places where we reside. So much so, that actuaries can calculate just how much an insurer needs to charge in the way of premiums to make a profit from insuring any articulable group of potential insureds. The problem, if you think about it, is that if your group consists mostly of those who already or are about the need the coverage, the cost of providing it is prohibitively expensive — because the bulk of the premiums are going to go right back out in payment of claims.

The solution to this actuarial dilemma is to get into the group of insureds the younger, healthier, less accident-prone members of society, who will pay premiums for years, but draw very little in the way of benefits, and thereby allow the older, sicker members of society to get covered and treated at a significantly lesser cost. In socialist and dictatorial countries there is no problem, the ruling class dictates all must join, all must pay their share and all are covered.

In our country, when a twenty-something year old, who doesn’t smoke, doesn’t drink to excess, doesn’t do drugs, eats healthily, and works out at a gym several times a week, decides he or she would prefer to take what they would otherwise expend on health insurance, and buy a car, take a vacation or go for a graduate degree, the likes of me, and others who are believers in what we formed this Country for, would say that was a perfectly legitimate exercise of the very unalienable human rights and pursuit of happiness the Declaration of Independence said we had and the Constitution guarantees.

If you are of a mind to say that health insurance; or, relatively unlimited access to medical treatment, regardless of ability to pay for it, or both, were part of the unspecified “unalienable human rights” referred to in the Declaration, or one of the non-enumerated rights referred to in the Ninth Amendment, I would say you don’t know your American history very well. The first third-party payor (health insurer) of health benefits was the Blue Cross & Blue Shield, established in 1930 at the Baylor University Medical Center. If so, none of the Framers could have had health insurance in mind as a basic right roughly 150 years earlier. So too, the elderly and infirm were the acknowledged responsibility of their families first, and, in lack of same, public charities. In those days, doctors made house calls, accepted chickens, cows and horses in payment for their services and didn’t need malpractice insurance — because none of their patients would have thought to sue them for malpractice, as that notion didn’t exist yet either.

Stick with me.

I have noted in prior diatribes the absurdity of how much a politician will raise and spend to get elected to a position that pays very little in comparison to what it cost to get there. Bribery and perks aside, the real reason for such quests, logically, lies in the power one secures from the position. To be an influential and effective leader in historic times is to gain immortality, one of the great quests of many conglomerations of quarks and leptons throughout history. Just as it is a natural instinct for we humans to propagate our species, so too it is a natural instinct of the political class to propagate their party. There is no better way to do that than to do things that make large portions of the electorate beholden to your party for what it delivered to them.

An amazing conglomeration of conglomerations of quarks and leptons the American electorate is. Our revolutionary and self-reliant spirit has passed on generation over generation, even unto this day — and despite assertions to the contrary, I suspect a majority of the electorate is still not prepared to surrender their individual rights to do whatever they want, whenever they want, wherever they want, to a paternalistic, perhaps well intentioned, but nevertheless overly-intrusive, central government.

Government, by definition, produces nothing, has no resources of its own, other than what it extracts from its electorate, in taxes, and, at best, can redistribute its extractions, wisely or ineptly, depending on who is at the helm at any given time. Government, in the sense of what was envisioned by the Framer’s, was intended to be limited in scope and power and essentially there to do that which couldn’t be done efficiently by the electorate. We are presently far afield from that notion.

When Franklin Roosevelt took office, during the Great Depression, his political philosophy was such that he believed he could resuscitate the economy by increasing government spending (even though he campaigned against Hoover by advocating “immediate and drastic reductions of all public expenditures” — but such is the nature of politics.) Notably, with all his government spending on creating public jobs, and other perceived “stimulus” measures, the unemployment rate only went from 24.9% in 1933 when he took office, to 17.2% when war broke out in Europe. It was World War II and America’s role as the “arsenal of democracy” that ultimately pulled our economy out of the doldrums and into unprecedented post-war prosperity.

Many of Roosevelt’s early attempts at greater governmental involvement in affecting and regulating the economy were shot down by a conservative majority that controlled the Supreme Court, which was the inspiration for his court packing scheme. All that changed when an associate Justice, cosmically, perhaps, also named Roberts, as is our present Chief Justice, switched sides and began joining the liberals to form a majority that found “Constitutional” such legislation as the Social Security Act (which instantly provided retirement and disability funds to qualifying recipients, to be funded from future contributions), the Housing Act of 1937 (which enabled the federal government to sponsor housing for low income families); and, the Fair Labor Standards Act (which established a minimum wage.)

Putting aside for a moment however noble you might find each of these legislative notions to be, they are each and all at their respective bases an incursion into our free-market economy, an attempt to shift wealth from the upper to the lower economic strata of our society; and, significantly costlier than ever admitted to or projected by the proponents. That each of these programs were instantly popular with their respective recipients and proponents, (which included Catholics,2 big city political machines, labor unions, northern African Americans,3 Jews, intellectuals and political liberals) and rendered them beholden to the political party that brought it to them, is a no-brainer — each of these constituents are still largely in the Democrat Party base today.

Despite all of his popularity, and ultimate support in the Supreme Court, Franklin Roosevelt knew how to read polls, and resisted his urge to add national health insurance to his list of legislative accomplishments. Not only was 79.3% of the electorate against it, the American Medical Association opposed it on the grounds of it being a form a socialized medicine.

In the wake of the Kennedy assassination, and with large majorities in both houses of Congress, in 1965, President Lyndon Johnson managed to get Medicare passed, furnishing compulsory health insurance to all persons over the age 65 —through a campaign of outright deception as to actual cost and misrepresentation as to what was actually covered. Case in point, in neither the original 1963 proposal nor in the final 1965 enactment, was long term catastrophic illness covered, yet, the public’s (uncorrected) belief that’s what it addressed, partly supported its popularity (as did the unspoken but nevertheless real desire of adult children to avoid the financial responsibility for their elderly parents.)

Ancillary to Medicare, but passed in the same Act, was Medicaid, which provided health care to children, adults and the elderly on a needs based basis. As originally enacted, the Medicaid provisions took up all of 10 pages in the Medicare Bill — that now goes on for over 500 pages. Medicaid covers over 25 million children, 13 million adults in families, 5million elderly (mostly in nursing homes) and 8 million blind or disabled persons. Unlike Medicare, which is fully federally funded, Medicaid is partially funded by the States.

Add to this one more legislative gem, the Emergency Medical Treatment and Active Labor Act, passed as part of Consolidated Omnibus Budget Reconciliation Act of 1984 (COBRA), which requires hospitals to provide care to anyone needing emergency healthcare treatment regardless of citizenship, legal status or ability to pay, and for which there are no reimbursement provisions.

If you are doing the math, you will perhaps note the poor, the elderly, the disabled and children, are mostly either covered by insurance of one form or another; or, regardless of insurance coverage, have access to medical treatment, whether they can pay for it or not.

In the exchange of hype over Obama Care, prior to and after its enactment, we heard a lot about the millions who lack health insurance. When you do the math, they are largely the young, who don’t think they need it, and might be right, and the employed, who might want it and need it, but can’t afford it at today’s rates — they are all that’s left out of the pool of available insureds.

Even Obama and his zealots, rightly figured out that flat out ordering everybody to sign up for health insurance might not only run afoul of the Commerce Clause, but might be really, really, unpopular with a sizeable chunk of his voting constituency. The solution that just passed Constitutional muster is what I now address, finally.

At its very core, Obama Care stands for the proposition that if you earn more than 133% of the federal poverty level income, and aren’t on Medicare, you have to buy health insurance, or pay a penalty of 2.5 percent of your household income, but no less than $695 and no more than the average yearly premium for insurance that covers 60 percent of the cost of 10 specified services (e.g., prescription drugs and hospitalization.)

If you read it real close, and think about it real hard, Obama Care doesn’t make you buy health insurance, but it does penalize you financially if you don’t. Not even Chief Justice Roberts could find a way to ascribe the decision to not do anything to be within the ambit of the very broad description of the outer limits of the Commerce Clause described in Wickard v. Filburn.

But without those young people who neither need nor want the coverage, the actuaries can’t get the cost of Obama Care under control. I posit that much in the way Social Security, Medicare and Medicaid were grossly under-represented to the public in terms of cost, so too was the true cost of Obama Care — but that is not the Constitutional issue, whether it is within the supposedly limited power of the federal government to mandate is the issue, and 5 of the 9 Justices of our present Supreme Court believe it is not, under the Commerce Clause.

The federal government’s power to tax is founded in Article I, Section 8 of the Constitution, known as the “Taxing and Spending Clause,” which provides, “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

You may have missed it, but based on prior Supreme Court construction, the Taxing and Spending Clause has two parts. First, Congress is authorized to raise revenues solely for the purpose of spending. However, if the purpose of any tax is not primarily to fund federal services, but is designed to penalize or regulate activities which the Constitution leaves to be regulated by another government, (read the States) the tax violates the law of spending authority. The test is not whether any tax incidentally affects the conduct of activities outside of the regulatory authority of Congress, but whether the purpose of the levy is within the purposes entrusted to Congress. This gem of jurisprudence was furnished courtesy of the 1922 decision in Bailey v. Drexel Furniture Company, in which former President Taft, now sitting as Chief Justice of the
Supreme Court, found unconstitutional a federal excise tax, because he determined it to be a penalty, actually motivated not to raise revenue, but to regulate child labor, which he found further to be an impermissible intrusion on the powers reserved to the several States under the Tenth Amendment.

If you think about that for a moment, you, as do I, might get the notion that providing health care and health insurance is one of the non-delegated powers reserved to the several States. (If you don’t, read my diatribes on the nanny mayor and his attempts to regulate Slurpees.)

Hmmmm. Think with me some more. Is there any part of you that doubts that the penalty imposed on non-insured, non-insurance buying citizens is there expressly to induce the recalcitrant to buy it? If so, we are in accord. If not, tell me please what the purpose of the “penalty” is?

This word “penalty” is Constitutionally significant for two reasons. First, because of an 1867 federal statute known as the “Tax Anti-Injunction Act,” a Constitutional challenge to a “tax” cannot timely be brought until after the IRS has denied a refund claim, or 6 months have elapsed since the filing of the claim, whichever is earlier. As the “penalty” provisions of Obama Care do not kick in until 2014, that would have rendered the Constitutional challenges to same premature. One notable exception to the Tax Anti-Injunction Act is that it doesn’t apply to a “penalty.”

Chief Justice Roberts found the “penalty” provisions of Obama Care to be just that, for purposes of the Tax Anti-Injunction Act, leaving him free to reach the merits of the challenge. Having decided that Obama Care could not be sustained under the Commerce Clause, the Chief had a problem, in that the holding in Bailey v. Drexel Furniture Company would render the “penalty” provisions of Obama Care prohibited as a usurpation of the States’ reserved powers under the Tenth Amendment.

No problem. The Chief now asserts that while a “penalty” for purposes of the Tax Anti-Injunction Act, they are really a mere “tax” for purposes of the Taxing and Spending Clause; and, thus, not restricted by the holding in Bailey v. Drexel Furniture Company. Really?

Perhaps we are so used to being taxed, we have grown to accept the notion of them (taxes) as such a part of object reality, it is pointless to wonder what they really are. I am not so jaded. The term derives from the Latin “taxo” (I estimate) and comes in a panoply of forms. Historically, governments have taxed real property (real estate taxes); ownership of property in any form (estate taxes on a decedent’s estate); transfers of property (gift taxes on donors, inheritance taxes on heirs); income from property (income taxes on dividends, interest and capital gains) income from wages and operating a business (income taxes, franchise taxes and unincorporated business taxes); purchases of goods and services (sales taxes); manufacture of goods (excise taxes); imports and exports of goods (tariffs and import duties); payment of wages (payroll taxes); and, just being in a taxing jurisdiction (poll taxes, levied on a per head basis.)

Call me difficult, but at the base of every “tax” is something to tax — your income, property, physical presence, goods, whatever. What, pray tell, are we “taxing” under Obama Care? Not owning a health insurance policy? Deciding not to buy one? Only an ass, a non-reflective one at that, could possibly believe we are “taxing” anything under Obama Care. We are, what the express language of the statute says we are doing — penalizing the recalcitrant.

If so, the Chief’s rationale for his decision is fatally flawed — but there’s no higher court to appeal to, no Constitutional Convention on the horizon to propose an Amendment to reverse this determination; and, barring Republican victories in the House, Senate and Presidential races in November, no legislative relief from this monstrosity in sight.

The fuzzy math that made Social Security, Medicare and Medicaid palatable to the electorate that actually pays for it has been hidden by years of creative government accounting, assisted by a generally up-trending economy that has been able to postpone the inevitable dose of reality. The birth rate is trending down, our citizenry is on average older and living much longer than the projections made when Social Security was first adopted. Our “funded” national debt has hit the $15 trillion mark. “Unfunded,” are the obligations we as a nation have for Social Security, Medicare and Medicaid that are nearly $62 trillion. If you are agape at that notion, and thought all these obligations were secured and “funded,” think again — those members of Congress the Framer’s worried would usurp our freedoms unless reigned in by a limited federal government, with only specifically iterated powers, only “funded” part of the obligations they incurred on all our behalf, and left it to future generations to figure out how to pay for it.

In Obama’s first two years in office, the U.S. government added more to the U.S. national debt than the first 100 U.S. Congresses combined! If you are ready to accept blaming all of this on George Bush, consider the following:

In 1950, each retiree’s Social Security benefit was paid for by 16 U.S. workers. According to new data from the U.S. Bureau of Labor Statistics, there are now only 1.75 full-time private sector workers for each person that is receiving Social Security benefits in the United States. Do you really believe old Georgie caused that?

Back in 1965, only one out of every 50 Americans was on Medicaid. Today, one out of every 6 Americans is on Medicaid. Do you really believe old Georgie caused that too?

We need to snap out of it as an electorate. If you are watching what is going on today in Europe, you must note they are suffering the effects of their over-spending, socialistic policies too.

If you want to know why reforming this insanity is so difficult, kindly note that a staggering 48.5% of all Americans live in a household that receives some form of government benefits. Back in 1983, that number was below 30 percent. Thus, in the immortal words of the comic strip character, Pogo, “We have met the enemy, and they is us!”

What happens when more than half the electorate is on the dole?

Want to reduce health care costs? Locate and prosecute cheats on both sides (doctors double billing or billing for services never rendered; and, persons claiming benefits they aren’t entitled to.) Treat medical and hospital malpractice the same as Worker’s Compensation claims, make recoveries for the same injury uniform, make legal fees for prosecuting claims subject to the same rate scale as Compensation claims; and, the resultant drop-off in suits will lessen the need for unnecessary, “cover-your-ass” tests and procedures. Allow health insurers to sell across State lines and broaden their pools. Cut the red-tape on drug trials and get them to market sooner, with a caveat that the drug is intended to treat what ails you but might have side effects that are as bad or worse. Thus warned, it’s your call and if it doesn’t work out, you rolled the dice and lost, but you don’t get to sue the drug company for trying. (I know, such heresy for a trial lawyer, but I am an American first, and feel competent enough to earn a good living even if some of the really lucrative engagements are less so.)

Now you know my thoughts on the Obama Care decision. I don’t know about you, but I feel cheated.

 

1.   If you are wondering how a State could purport to regulate your use of contraceptives, you are young indeed, but no longer have to worry. Now they want to regulate the size of your Slurpee. In common between the two notions is where does your individual freedom end and government’s right to impinge on it begin.

2.   Certain provisions in Obama Care run afoul of the Catholic Church’s positions on, inter alia, contraception, and it remains to be seen whether this will peel some support off the Democrats in the Fall. In case you were wondering, Griswald only affected Connecticut’s right to regulate contraception — the Second Amendment, thus far, ensures the Catholic Church’s right to proscribe the practice, even unto today.

3.   Southern whites were counted in the great “Southern Block” that was solidly Democrat from when Republican Abraham Lincoln freed the slaves, reputedly until President Johnson pushed through the 1964 Civil Rights Act.

This Post Has 39 Comments

  1. As I’ve observed, there’s nothing wrong with this country actually. It’s the seated leaders who are manipulative enough to make the law their own and not look out for the best interest of the people.

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