Category Archives: The Courts

Dr. Paul Continues To Cast Pearls Before Swine

Healthcare, Individual Rights, Regulation, Republicans, Ron Paul, Socialism, The Courts, The State

Responding to Justice Roberts’ smart-alec SCOTUS decision in the matter of “The Affordable Care Act,” Ron Paul said this:

“Today we should remember that virtually everything government does is a ‘mandate.’ The issue is not whether Congress can compel commerce by forcing you to buy insurance, or simply compel you to pay a tax if you don’t,” said the Texas Republican. “The issue is that this compulsion implies the use of government force against those who refuse. The fundamental hallmark of a free society should be the rejection of force. In a free society, therefore, individuals could opt out of “Obamacare” without paying a government tribute.”

“Those of us in Congress who believe in individual liberty must work tirelessly to repeal this national health care law and reduce federal involvement in healthcare generally. Obamacare can only increase third party interference in the doctor-patient relationship, increase costs, and reduce the quality of care … Only free market medicine can restore the critical independence of doctors, reduce costs through real competition and price sensitivity, and eliminate enormous paperwork burdens. Americans will opt out of Obamacare with or without Congress, but we can seize the opportunity today by crafting the legal framework to allow them to do so.”

As you read through Dr. Paul’s diagnosis and prescription, of Jun 27, 2012, remember that conservatives in power support third-party health-care distortions in almost all their permutations:

I recently discussed absurd legal arguments by Obamacare advocates that Congress can compel the purchase of health insurance, and the dismal record of federal courts applying so-called “judicial review” in protecting liberty. It is obvious that Obamacare’s legal apologists either are wholly ignorant of constitutional principles, or wholly lawless in their blatant disregard for those principles.
Likewise, supporters of Obamacare are willfully ignorant of basic economics. The fundamental problem with health care costs in America is that the doctor-patient relationship has been profoundly altered by third-party interference. Third parties, either government agencies themselves or nominally private insurance companies virtually forced upon us by government policies, have not only destroyed doctor-patient confidentiality. They also inescapably drive up costs because basic market disciplines — supply and demand, price sensitivity, and profit signals — are destroyed.
Obamacare, via its insurance mandate, is more of the same misdiagnosis.
Gabriel Vidal, chief operating officer of a U.S. hospital system, sees this problem squarely in his daily work. As he explains, Obamacare will only make matters worse because it fails to recognize that “costs are out of control because they do not reflect prices created by the voluntary exchange between patients and providers”» like every well-functioning industry.”
Instead, “health costs reflect the distortions that government regulators have introduced through reimbursement mechanisms created by command-and-control bureaucracies at federal and state levels,” he continues. “But it is theoretically and practically impossible for a bureaucrat — no matter how accurate the cost data, how well-intentioned and how sophisticated his computer program — to come up with the correct and just price. The (doctor-patient) relationship”» has been corrupted by the intrusion of government and its intermediaries (HMOs, for example) to such an extent that we can no longer speak of a relationship that can produce meaningful pricing information.

UPDATED: Screwed By The SCROTUM & Its Chief Politico (Obama On Top)

Constitution, Founding Fathers, Healthcare, Justice, Law, The Courts, The State

“Anticipating A Turn of The Health-Care Screw,” last night’s Barely-a-Blog post title, was apt.

The SCROTUM would fail to dissolve “the hulking bill,” Orwellianly titled “The Affordable Care Act.” The Supermen Court, after all, doesn’t follow natural law; individual rights, or even the founders’ federalism.

Why, the Constitution itself, in all its amendments, has long since veered from the just law. All the more so the jurisprudence that “interprets” this already flawed, dead-letter scroll. (“Sometimes the law of the state coincides with the natural law.“ More often than not, natural justice has been buried under the rubble of legislation and statute.”)

“As affable as he is,” said a September 15, 2005 blog post titled “Judge Roberts: Smooth Operator?”, during Roberts’ confirmation hearings, “Roberts, regrettably, is no Janice Rogers Brown.”

Their devotion (and dotage) prevents President Bush’s lickspittles from realizing that he too considers Rogers Brown ‘outside the mainstream,’ to use the Democrats’ demotic line. Let’s hope, at the very least, that Roberts is a Rehnquist.” AND, “here’s the thing that unsettles: Roberts seems to be all about the moves.”

Lyle Denniston, of the SCOTUS Blog, speaks to the technicalities of today’s decision, in “Don’t call it a mandate — it’s a tax”:

Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Thursday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

“The Roberts Court is Born”:

Today’s Supreme Court is often referred to as Anthony Kennedy’s Court. Although Kennedy is the swing justice who usually casts the deciding vote in close cases, the landmark ruling this week in the healthcare cases clearly mark the maturation of the “Roberts Court.”
Chief Justice John Roberts was the surprising swing vote in today’s Obamacare decision. Although he agreed with the four conservative justices, including Kennedy, that the individual mandate was not a regulation of interstate commerce, he voted with the Court’s moderates to hold that it was justified as a tax. Because people who don’t obtain insurance pay a tax to the IRS, the mandate was within Congress’s power to raise taxes for the general welfare. As a result, the Affordable Care Act was upheld.
With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court. No Supreme Court has struck down a president’s signature piece of legislation in over 75 years. Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn’t want to go there.

UPDATE: Absolutely right is the New York Time: “The decision was a victory for President Obama and Congressional Democrats, affirming the central legislative pillar of Mr. Obama’s presidency.”

AND, so was “SUPREME COURT OF THE UNITED STATES: ARIZONA ET AL. v. UNITED STATES.”

So, for heaven’s sake. Quit the denial. Liberty was not sundered with Obama. It’s long gone.

Anticipating A Turn of The Health-Care Screw

Federalism, Healthcare, Individual Rights, Law, The Courts

Nothing short of a total repeal of Obama care will do, because such a repeal will amount to nothing more than a “do no more harm” injunction. However, even in the unlikely event that the SCOTUS deals a set back to Obama’s politburo of proctologists in the waiting, and repeals the hulking bill–we are still screwed, as we currently labor under a costly, unwieldy “patchwork of indemnity insurance arrangements, managed care, private payment, and charity.” Free market incentives are not exactly robust in the current Third-Party system.

Until tomorrow, Amy Howe anticipates the health-care decision, “In Plain English,” at the SCOTUS Blog:

Once the Court does turn to health care, there are four questions before it. Three of those questions revolve around the “minimum coverage” provision, popularly known as the “individual mandate.” Of course, the question keeping the White House, Congress, and everyone else in the country on pins and needles is whether the mandate – which would require virtually all Americans to buy health insurance by 2014 or pay a penalty – is constitutional: can Congress, using its power under the Constitution to regulate commerce between the states, make people buy health insurance? (More detailed Plain English discussions of the substantive issues in the case, including the individual mandate, are available at this link.)

But before the Court can decide whether the mandate is constitutional, it must first decide whether it can even rule on this question at all. The potential obstacle to the Court’s review of the mandate is the Anti-Injunction Act (AIA), an 1867 law that prohibits lawsuits to challenge a tax until the tax has actually gone into effect and needs to be paid. At least one lower court has concluded (and the federal government once even argued) that the “penalty” which would be imposed on someone who doesn’t buy health insurance under the mandate is a “tax”; therefore, this line of reasoning goes, someone who believes that the mandate is unconstitutional cannot bring a lawsuit making that argument until after the mandate actually goes into effect in 2014.

If the AIA applies to the lawsuit over the mandate, then the Court cannot consider the challenge to the mandate even if both the federal government and the states challenging the law want the Supreme Court to decide the case. So if at least five of the nine members of the Court were to conclude that the AIA does apply to the mandate, that would be the end of the matter. The Court would not discuss, much less rule on, whether the mandate is constitutional, nor would there be any reason for the Court to weigh in on what parts of the law, if any, can survive if the law is unconstitutional – the “severability” question. Instead, the Court would skip straight to the fourth and final question, dealing with the constitutionality of a provision that expands eligibility for Medicaid, the state-federal partnership that provides health care to the poor.

What the Court will in fact decide about the AIA obviously remains to be seen tomorrow. After the oral argument in March, most Court watchers believed that the Court would not regard the AIA as a bar to reviewing the mandate. But if that issue went the other way, that decision would postpone a decision on the mandate until well after the presidential election – which might be an appealing option both for political reasons and if the Court is having a hard time coming up with a majority to resolve the mandate issue.

At least for tomorrow, all that anyone will really be interested in with regard to the AIA is the Court’s bottom line: can it review the mandate issue or not? If it agrees with both sides that it can, all eyes will then turn to that constitutional question. Most Americans care about the bottom line: is the mandate constitutional? Even if the Justices disagree on the reasoning, the mandate would still survive.

If the mandate does survive, then the Court’s work is almost done; all that would be left would be the Medicaid issue, which we will discuss in a moment. But if at least five Justices vote to strike down the mandate, then the Court will have to decide what other parts of the law, if any, fall with it. On this “severability” question, the Court will again have several options. It could allow all of the rest of the ACA to stay in place; it could conclude that the rest of the law must go too (as the states have argued); or it could settle on a middle ground – for example, as the federal government argued, by striking down the provisions that are inextricably linked to the mandate but allowing the others to go into effect.

Finally, as long as the Court doesn’t conclude that the entire ACA must fall, it will have to resolve one more issue: does another provision of the Act violate the Constitution because it effectively coerces the states, requiring them to comply with the ACA’s expanded Medicaid eligibility requirements or risk losing all of the money that they receive for Medicaid from the federal government? The lower court agreed with the federal government that it does not, and the Justices seemed to be leaning that way at oral argument. But as we saw on Monday when the Court announced its decision in the Arizona case, the oral argument is not always a foolproof predictor of how the opinion will turn out.

So check back tomorrow; we’ll have our first reporting on the decision as soon as it is announced, and then we’ll break it down into Plain English as soon as possible after that.

Kris Crossing The SCOTUS’ S.B. 1070 Decision

Constitution, IMMIGRATION, Law, States' Rights, The Courts

The fact that both sides in the immigration-enforcement debate are claiming victory in SUPREME COURT OF THE UNITED STATES: ARIZONA ET AL. v. UNITED STATES attest to just how whishy-washy the split decision today out of the SCOTUS was.

The most informative by far is “Kansas Secretary of State Kris Kobach, who helped draft the Arizona statute, as well as similar laws in other states.”

PBS’s GWEN IFILL asked Kobach whether “this stop-and-check provision that was upheld was at the heart of the law.”

KRIS KOBACH, Kansas Secretary of State: “Yes, I think so. It is certainly part of the law that has the greatest scope, so when Arizona claims victory, I think that’s correct. It’s a qualified victory for the states, the part that has the greatest reach.

Put it this way. That provision will kick in, in thousands of law enforcement stops every day throughout the state of Arizona. So it has a great reach. The other provisions are less significant, for example, the part criminalizing the illegal seeking of work.

That’s only going to be relevant if a county launches an investigation of a particular employer, and then they discover certain unauthorized aliens who have broken that law. So, it’s much narrower. The big one was the one that was upheld today. And I think that’s going to give a green light to other states who — some states have already copied that provision of Arizona law.

And there are additional states that probably will try to do so in January in 2013, when the legislative sessions begin again.”

ABOUT the alleged racial profiling in the law, Kobach said this:

… the law in four different sections expressly prohibits application of the law differently to a person whether based on his skin color, his national origin or his ethnicity. The law forbids racial profiling.
The Department of Justice knew that that argument would get nowhere in a facial challenge. And if in the future you had a bad apple police officer who was trying to racially profile, he would be breaking SB-1070, he would be breaking the law. And so his actions wouldn’t in any way indict the law. The bottom line is…

GWEN IFILL: …What is it — how do you walk the line that the court laid out today, which is a law that can — that complements federal law, but doesn’t supersede it, as the court said so much of the Arizona statute did?

KRIS KOBACH: “Well, we now have some clear guidance from the court. We know that the arrest provisions of Section 2-B, the main provision we have been talking about here, those are perfectly fine. We have got a number of other states that have already implemented them and are in circuit courts right now.

There are a bunch of states waiting in the wings to do the same thing. Those can move ahead. If a state wanted to do the criminalization of seeking employment, the Supreme Court has said no.

And one other thing that is really important about this opinion, the court clarified what I have been arguing all along and I think most people who follow this specific area of preemption law know. And that is there have always been windows of opportunity where states can act as long as those actions are consistent with federal law.

And the court reiterated that today. They said, in our federal system, the courts can take certain steps to discourage illegal immigration and communicate and assist with the federal government, assist the federal government in enforcing our immigration laws. And the court reiterated that today. So, I think you’re going to see states continuing to take reasonable steps to try to rebuild the rule of law. …

…This law simply is about enforcing the rule of law and allowing state and local governments to provide a reasonable amount of help when they’re in the course of their normal duties. There is no disrespect for a person’s humanity by simply saying we have certain laws in this country and we simply want to inquire as to whether you’re here legally.

As far as diminishing states’ rights, there is one aspect that I would certainly concede in the majority opinion that says — what the court did is they looked at Congress acting in 1986 when Congress criminalized the employment of an unauthorized aliens, when you have a large number of unauthorized aliens or you have a pattern and practice.

And the court said, well, we’re going to read into what Congress did. We’re going to look at what Congress didn’t do. And we’re going to read into Congress’ decision not to criminalize the employment — the actions by the employee. And we’re going to say that inaction by Congress preempts the states as well.

I think that was a troubling part of the opinion because, you know, when you have inaction by Congress, 99 percent of the time they’re not passing something, and you start drawing conclusions from congressional inaction, then you potentially can displace the states in a way that the framers never intended. …

…certainly Congress can and should take certain actions.

I think Congress should, for example, follow Arizona’s 2007 law that was upheld by the Supreme Court last year requiring E-Verify for all employers in the state. We should have that nationally.

But on the other hand, I would say there are a lot of things we could do to improve our enforcement of the laws. People always say, the system is broken, the system is broken. Well, not exactly.

Some aspects are, but there are plenty parts of the system that work just fine, but we lack an executive branch right now that wants to enforce the law.”