RobertsCare – The Continuing Saga

(If you haven’t done so, please read last week’s blog – RobertsCare – which is Part I of this post.)

Rumors leaking out of the Supreme Court suggest Roberts was aligned with Kennedy and the conservative wing of the Court after hearing arguments and had decided the mandate was unconstitutional. Sometime toward late April, he went over to the Dark Side for reasons only he knows. Joining the liberal wing, he had an epiphany that the mandate could be constitutional under the taxing power of Congress. For a month his colleagues on the right tried to woo him back into the fold – to no avail.

The outnumbered conservatives plus Kennedy, whose traditional “swing vote” status had been usurped by Roberts, went ballistic in their dissent:

The government and those who support its position on this point make the remarkable argument that [the mandate] is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes. That carries verbal wizardry too far, deep into the forbidden land of the sophists.

If you’re scratching your head over the squirrely tax logic of RobertsCare, the decision of its provisional author concluded that the federal government can’t make people buy health insurance, but it can impose a tax on people without health insurance. And what a tax it is – the largest in history! It will cost Americans $800 billion annually, according to the Joint Committee on Taxation. Of the 21 new or enlarged taxes in the Act, seven fall on people making under $200,000. Notwithstanding Obama’s “promise” that he would not raise taxes on the middle class – “not one dime” was what he promised – ObamaCare is going to cost Americans $2.6 trillion over the next decade. That’ a lot of dimes.

But that’s not the most troubling aspect of the “mandate wolf” in “tax clothing.” Eighteen times in the ObamaCare Act it calls the consequence of failing to have health insurance a penalty, not a tax. Roberts held the position that, regardless of what Congress called it, it operates like a tax. The distinction is important because a tax is an “exaction” whose purpose is to raise revenue. The purpose of a penalty is to compel a desired response – the “or else” that accompanies policing power – and in the hands of the feds, such penalties are a violation of the 10th Amendment. Penalties are designed to make compliance more attractive to a person than non-compliance – i.e. “the penalty fits the crime.” But Roberts argued that the monetary consequence for not buying or having health insurance is so much less than the actual cost of the insurance that it can’t be a penalty; therefore, it must be a tax within the taxing power of Congress. At least that was Roberts’ understanding in his binary world and he was sticking to it.

One might ask what happens if non-compliance is so widespread – a real likelihood – that Congress raises the cost of non-compliance? At which point does the tax then become a punitive penalty violating the 10th Amendment? RobertsCare has laid the groundwork for Congress to use taxes to motivate citizen behavior, and yet if Congress crosses some unspecified dividing line from taxing to penalizing – a no-no for the feds – is Roberts going to review every mandate tax increase and every other behavior-modifying tax to determine if it’s really a penalty and thus illegal?

Here’s another question. Article I, Section 2, Clause 3 of the Constitution says:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers …

Note the word “apportioned” because Article I, Section 9, Clause 4 further says:

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

In other words, direct taxes are only legal if they are apportioned among the states according to population. A tax is “direct” if it is imposed on a person or his property, whereas an “indirect tax” is imposed on transactions, like a sale or transfer. The latter are often called excise taxes.

Direct taxes were abhorrent to 18th century Americans. They were arbitrary, discriminatory, “head taxes” that were unavoidable. The justification for their levy was simply that a person existed – an inescapable fact. Property could also be direct-taxed because it too existed and couldn’t escape its existence. If the tax was too onerous to pay, property would be expropriated. In contrast, an indirect tax could be avoided by avoiding the transaction on which it was based. Understanding the abuses of direct taxes, the authors of the Constitution severely limited Congress’ ability to impose them, specifying that direct taxes had to be apportioned by population. For those who live in Palm Beach County Florida, land of hanging chads, that means everyone pays the same tax.

So how does Congress get away with its discriminatory taxing of income (property)? It’s called the 16th Amendment to the Constitution, which established the income tax – an unapportioned tax which fell on about 2% of the population at the time. No other direct taxing is permitted by our current Constitution. Taxes on cigarettes, alcohol, and sales taxes are indirect excise taxes that can be avoided by not consuming these and other products.

But the “mandate tax” is not avoidable. You pay it or buy a product you don’t want. Either way, you’re out money and can’t escape payment in one form or another. If you haven’t purchased insurance, you notify the government on your income tax filing and the tax is withheld from any refund due from the IRS. If you have purchased insurance, you owe nothing. So suppose all of the citizens of Georgia have health insurance, but those of Ohio don’t. Ohio citizens pay the tax and Georgia citizens don’t. That looks like a direct tax to me. It is not apportioned by population so it’s an illegal direct tax.

There’s one other characteristic the strange tax invented by RobertsCare: it operates like no other tax I know. If you owe tax to a state or the federal government, they have the right to be paid. It’s a criminal act not to pay. Liens can be filed against property or property can be seized, fines and interest can be levied, jail terms can be meted out. Not so with the “mandate tax.” No liens, no levies, no wage garnishments are allowed in the ObamaCare Act. The only thing the government can do is withhold taxes you overpaid. So, don’t overpay your taxes. What’s the government going to do?

Therefore, is the Roberts “tax” really a tax? Taxes raise revenue. If everyone complied with the mandate, the revenue raised by the RobertsCare tax would be zero. Sounds like a federal penalty to me. Direct federal tax or federal penalty … whatever … I’m no lawyer but both are illegal under the Constitution as I read it.

Because the mandate survived the Court’s opinion, the severability issue never became germane. Severability is a complex constitutional issue going all the way back to Marbury in which the Chief Justice struck down part but not all of the Judiciary Act of 1789. News leaking out after the Court’s ObamaCare decision indicates there was considerable wrangling over striking down the entire law, which had no severability provision (probably by design.) This could have been a disaster because ObamaCare is so interconnected (District Judge Vinson likened it to a watch), and parts of it have already activated and are popular – guaranteed issue for example. Striking down the mandate and leaving the rest of ObamaCare intact would be tantamount to a line item veto by the Court. Some of the Court leaks say this is why Roberts initially supported striking down the mandate, but unable to reconcile the warring factions concerning severability, he joined the liberals in a convoluted search to find a way to save the mandate under the taxing provision of the enumerated powers.

With severability a non-issue, the last thing the Court had to decide was the coercive expansion of Medicaid under ObamaCare. Starting in 2014 states were required to expand Medicaid to all non-elderly individuals with family incomes below 138% of the federal poverty level, which is currently $23,050 for a family of four. ObamaCare picks up the cost of expanded benefits (but not administration cost) for the first three years. States bear all costs for administration, which will be significant since participation is expected to grow by 50%. Beginning in 2017 states must begin to assume a share of the expanded benefit costs. The state cost-sharing will max out at 10% in 2020.

States are also required to set up insurance exchanges that will allow people within 100% to 400% of the federal poverty line to buy subsidized insurance.

If the states don’t play, they pay – all Medicaid funding to the state will be terminated. Wow! That’s a big “or else.” And it’s also an illegal use of police power.

Seven of the justices concurred that the expansion of Medicaid was a new program – not an extension of current Medicaid programs. The same seven justices ruled against coercing adoption of the insurance exchanges. According to Roberts, the new program puts a “gun to the head” of the states unless participation is voluntary, not coerced by the threat of losing Medicaid funds. The ObamaCare threat to withdraw all Medicaid support would cause financial instability among the states, the Court ruled, and was an assault against state sovereignty, which the Court is now on record as supporting.

On balance, allowing the mandate to survive by calling it a tax is a lousy decision. Instead of using the Commerce Clause to modify behavior, the ever-growing imperialism of Congress can now accomplish the same thing with a tax. The feds want you to buy a certain type car, put solar panels on your roof, lose weight? Pass a non-compliance tax.

But, Roberts argues, you can throw the bums out for raising your taxes. Well, we can also throw out the bums for abusing the Commerce Clause, but we haven’t. Lincoln said people get the kind of government they deserve. And an indifferent electorate has sown the wind and reaped the congressional whirlwind most of my life. It gets worse each year. Currently only half of the income-earners pay taxes. The other half, who happen to vote, aren’t going to get their panties in a wad over Congress’ taxing power. When a majority of taxes are paid by an ever-shrinking minority, when do taxes cease to be a revenue-raising device and become instead a success penalty – an instrument of class envy, which this president has used as no other predecessor has?

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

"It is not our job," Roberts wrote, "to protect the people from the consequences of their political choices"? True enough. But it is the Court's job to defend the liberty of the country’s citizens when the political leaders exceed the limitations imposed by the Constitution. It’s not the Court’s job to strain at a gnat so, as Roberts asserted, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The liberal activist judges in the federal court system don’t hold that view. Contrary to the Roberts sophistry, it’s not the Court’s job to ignore “the most natural interpretation of the mandate,” which the conservative dissenters chose, in search of a “fairly possible” interpretation, which the activists joined by Roberts chose. ObamaCare repeatedly called the consequence of not buying insurance a penalty. By what rationale can the Court ignore what its authors claimed they were doing and call it something else?

As I have repeatedly said in previous blogs, political society in America is made up of makers and takers. Mitt Romney may not be the breathless dream candidate the makers had hoped for. But in 2012, Romney is not the central issue of the election. The 2012 election is a referendum on a man with no record in 2008 who has a record in 2012. It’s a referendum to give him four more years of implementing his remaking of America, as he has done, or to take a new direction. So, in just four months the electorate will cast its vote for Obama or against Obama – more so than it will choose one candidate over the other.

Obama’s political forbearers gave us Social Security, Medicare, and Medicaid, each of which has blown through the projected financial burden they laid on backs of productive society and they now threaten to overtake society’s ability to create wealth. According to the CBO, the burden of ObamaCare will dwarf these prior programs.

The 2,700 pages of the ObamaCare bill have now morphed into 13,000 pages of regulations (at last count), 180 new bureaucratic agencies staffed by people with IQs hovering around room temperature, 16,500 new IRS agents to harass private citizens and meddle in their affairs, and a massive transfer of power from an elected Congress to an unelected Secretary of Health and Human Services and her flying monkeys who will control one-seventh of our economy. Moreover, it establishes the Independent Payment Advisory Board, which will make decisions to ration care that are not reviewable by courts and are beyond the control of our elected Congress. There will be Medicare cuts, mandates for affirmative action in medical and dental schools, interference in the way doctors practice medicine, and restrictions on religious freedom, which the Catholic Church has already experienced.

And you thought you and your grandchildren were free citizens living under a democratically-elected government? "The nearest thing to eternal life we will ever see on this earth is a government program," said Ronald Reagan. And the last thing a government program is designed to be is accountable to the people who run this country, the Framers said, through elected representatives.

If Obama is ousted this fall, the new president can refuse to enforce the ObamaCare mandate tax by executive order. If a Republican majority is elected in both houses of Congress, they can repeal all or parts of ObamaCare in budget reconciliation with a simple majority – which defeats Senate Democrats’ ability to filibuster.

Two weeks ago we celebrated the 236th anniversary of our forefathers’ throwing off the yoke of an oppressive king and his administration whose agents in this country were a constant reminder that our forefathers were not truly free. They were as free as their overlords would tolerate. I have lived through the administrations of 13 presidents. None has frightened my sense of personal freedom and well-being as the incumbent president. So I’ll close with this warning from Ronald Reagan:

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.

Exercise your freedom. Vote on November 6.

RobertsCare

When the US Constitution was drafted in the summer of 1787, it was written for a nation of farmers and shop keepers. They would have to be convinced that it should be ratified by each state’s ratification convention. It was, therefore, written as a simple straightforward explanation of how the proposed central government would work – something poorly-educated farmers, merchants, and shop keepers could comprehend. The proponents argued and assured a suspicious populace that the Constitution established a federal system – i.e. one in which the sovereignty of the states and their citizens would coexist alongside the new national government whose powers were explicitly enumerated. Indeed, in Federalist 45 James Madison wrote:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. 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.

In the first two decades of the young Republic, the Supreme Court was about as busy as the Maytag repairman. But by hearing the 1803 case of Marbury v. Madison, the Court asserted it had the authority under the Constitution to review the legality of the acts of Congress, and with that, the interpretation of the meaning of this “farmer’s guide to the operation of government” has become more complex with each generation.

The Supreme and inferior courts of each generation have discovered new rights in nuanced interpretations of the document’s simple and straightforward provisions, such as the 1973 Roe v. Wade, which legitimized abortion under the Due Process provisions of the 14th Amendment of 1868 – a right that, lo and behold, had been hiding there for 105 years before its discovery by Justice Harry Blackmun. Moreover, the insights of the jurists of one generation could be found flawed by those of a later generation, such as the 1896 Plessy v. Ferguson decision, which upheld the constitutionality of state racial segregation laws under the “separate but equal” doctrine, only to be found unconstitutional in the 1954 Brown v. Board of Education.

Some Supreme Court decisions have been positively hilarious. In the infamous 1942 case of Wickard v. Filburn Farmer Filburn, planted and harvested more wheat than President Roosevelt’s overreaching New Deal Agricultural Adjustment Act of 1938 allowed. Roosevelt wanted to limit free markets in order to drive up the price of wheat during the depression. When his transgression was discovered, Farmer Filburn was fined. He claimed he raised the excess wheat to feed to his livestock, not to sell it – a fact not disputed by the federal government. Thinking he was a free citizen with the right to grow grain to feed his chickens and cows, Filburn appealed to Roosevelt’s Supreme Court. Bad mistake. The Court told Farmer Filburn that if he hadn’t grown his surplus feed grain, he would have had to buy grain on the market to feed his animals. And if every farmer did what Farmer Filburn had done, why, the demand and the price for wheat would go down! While there was no proof that a nationwide black market in feed grain existed, nevertheless Farmer Filburn stood guilty as charged because his actions could have had “substantial affect” on the government’s regulation of interstate wheat sales – even though his additional production for animal feed was modest to any reasonable observer. Thus the Court was on record for finding a man guilty who could have made something happen that didn’t happen.

John Roberts was therefore in good company last Thursday when he delivered the tortured logic of the majority in NFIB v. Sebelius commonly referred to as the ObamaCare case.

Let’s begin at the beginning – always a good place to start.

The first clause of Article I, Section 7 of the Constitution, also known as the Origination Clause, explicitly says:

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.

There’s a reason for this. This country had its founding in a rebellion against taxes. Thus the Founders wanted to make sure that the origination of taxes, never popular with those who must pay them, occurred in the House of Representatives whose members face the voters every two years, making them much more accountable than the Senate – which was originally elected by state legislatures and served for longer, six-year terms.

Oops. The ObamaCare bill originated in the Senate, not the House, and was largely the work of Sen. Max Baucus. Only the bill number – HR 3590 – originated in the House. This bit of flim-flammery occurred by gutting an original bill authored by Rep. Charles Rangel under HR 3590, which was named the Service Members Home Ownership Tax Act of 2009, intended to amend “the Internal Revenue Code of 1986 to modify the first-time homebuyers’ credit in the case of members of the Armed Forces and certain other Federal employees." The bill passed the House in October 2009 and was sent to the Senate.

The Senate Majority Leader, Harry Reid (D-NV) stripped out the contents of the bill (except the first sentence), retained its HR designation number, renamed it the Patient Protection and Affordable Care Act, and stuffed it with Baucus’ 2,700-page bill replete with 21 new or higher taxes needed to make ObamaCare work. Therefore, ObamaCare was illegal from the outset.

A significant problem had to be overcome to make ObamaCare work in the real world, however. Many people were uninsured – about 45 million – some voluntarily because they were young and healthy and the purchase of expensive health insurance was not a good value for them. Others were temporarily uninsured because they were between jobs. Still others – the minority of uninsured – couldn’t afford insurance. Somehow the voluntarily uninsured young healthy people would have to be dragooned into the insurance system because insurance companies lose money on sick people, whose claims exceed their premiums, and make money on healthy people whose premiums exceed their claims. The insurance companies needed the premium payments of the healthy to offset the losses of the chronically and acutely sick.

The answer: a mandate in ObamaCare that required everyone in the country to be insured – i.e. everyone had to pay into the risk pool – and anyone who did not would be subject to a penalty whose amount varied by income. The mandate would allegedly prevent insurance premiums from rising. If everyone weren’t forced to pay into the pool, the sickest insureds would drive up premiums, then those on the income margins would drop their insurance coverage because it would become too expensive – exacerbating the uninsured problem without a mandate. Well, in theory that was the idea.

The irony of the ill-conceived ObamaCare, however, is that it makes it illegal for insurance company premiums or issuance to discriminate against people with preexisting conditions. Therefore, there is no incentive for many (if not most) people to buy insurance until they are sick or old enough to need it. The penalty they pay for foregoing insurance pales against premium cost, and with this perverted incentive, going without insurance will only get worse.

When ObamaCare passed into law without a single Republican vote – and without the votes of some in the Democrat caucus – critics howled at its constitutional underpinnings (or lack thereof.) The effect of the individual mandate, they correctly claimed, was to arrogate to the federal government police powers – i.e. “do this or else” – which are expressly reserved to the states in the Constitution. Police powers allow the regulation of behavior for the general welfare. Violations can result in compulsion, like arrest, or inducements, like fines. The 10th Amendment, one of the original Bill Of Rights, states “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.” In other words, the federal government is limited to its enumerated powers in the Constitution, which don’t include police power.

In order to get around the restriction of the 10th Amendment, Congress used another provision to seize police power whenever it wanted to control society’s behavior. It used the Commerce Clause. This is an abuse of Article I, Section 8 which clearly was intended to regulate real commercial transactions across state lines – not implied, not potential, not “could have been” transactions like Wickard v. Filburn. I have previously blogged on the rationale of the Commerce Clause and therefore won’t repeat its rationale here, but suffice it to say when Congress found the cookie jar in its insatiable quest for power to regulate people’s lives, it usually found a willing accomplice in the Supreme Court.

I fully expected that to happen again as ObamaCare wended its way through the court system en route to the Supreme Court. The Commerce Clause defense had survived the scrutiny in the majority of District and Appellate courts that heard its contorted logic, including the finding of a conservative appeals court justice about whom I also blogged almost a year ago to the day of the Roberts’ findings. I predicted then that there was a good chance that ObamaCare would survive – not because I was prescient, but because the “liberal” side of the Court always brings guns to a knife fight, and I didn’t trust the “conservative” side to restrain its liberal activists any more than the Court has restrained an activist Congress that has been out of control most of my life.

ObamaCare was argued before the Supreme Court from March 26 to 28 and quite likely the Court made its decisions in late March or early April in order that assignments could be made for writing the majority and dissenting opinions. Normally, Supreme Court hearings last an hour – 30 minutes for each side. The fact that this case spanned six hours over three days suggested that the Court considered the issues extraordinary. Similarly, the hearing that led to the 1966 Miranda decision, wherein police officers must advise suspects of their rights, had taken six hours. Two important campaign finance cases were each granted four hours to argue. Interestingly, only 90 minutes was set aside to hear the important 2000 Bush v. Gore arguments, which the silliness of Florida’s “hanging chad” Supreme Court had stirred up.

The first day heard 90 minutes of ObamaCare oral arguments concerning the Anti-Injunction Act, a law that harks back to 1793 and prohibits challenges to tax laws until taxes are collected. The AIA would only be germane if the mandate, which doesn’t go into effect until 2015, or any part of it could be considered a tax, which Obama and his coterie steadfastly denied. Justice Alito anticipated the government’s strategy and jumped into the argument Solicitor General Donald Verrilli put forward on the first day:

General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

"No," answered Verrilli.

The second day of hearings lasted for two hours during which the arguments defending and disputing the coercion of individuals into purchasing insurance under the provisions of the Commerce Clause were put forward.

The third day dealt with severability and the Medicaid mandates imposed on the states. ObamaCare has no severability clause, therefore, if any part is found unconstitutional, the entire law could be struck down. Severability arguments were heard for 90 minutes, followed by an hour of arguments concerning the usurpation of states’ rights if ObamaCare is allowed to tell states to expand the reach of their Medicaid program “or else” forfeit all federal Medicaid funding – another police power grab.

When the decisions were to be read last Thursday, a lawyer in attendance observed that Justice Kennedy – usually the swing vote – entered the chamber virtually seething with anger. That was a sign there were fireworks ahead.

In years past, Congress has made an art form of abusing the intent of the Commerce Clause, as I’ve said above, to pass all manner of laws, often with the collaboration of the Supreme Court. The Civil Rights Act of 1964 became law under the provisions of the Commerce Clause, if you can believe it, and so did the Endangered Species Act. So I was surprised that the Court found against the mandate under the provisions of the Commerce Clause. The Court opined that Congress would have unlimited authority if the mandate was allowed under that provision of the enumerated powers.

“The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions," Roberts wrote for the majority, which included Justices Scalia, Kennedy, Thomas and Alito. Congress can regulate commerce; it cannot compel one to engage in commerce.

The Roberts opinion for the majority thus lectured future Congresses:

The Constitution grants Congress the power to “regulate Commerce.” The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous....

Our precedent also reflects this understanding. As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity.” It is nearly impossible to avoid the word when quoting them....

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.

It would therefore appear that Roberts has sealed off the Commerce Clause pretense when future Congresses attempt to force citizens to “do” something rather than “not do” something. Roberts went on to reject the mandate as an exercise of congressional authority under the Necessary and Proper Clause, which had also been argued by Verrilli. Therefore, the naked grab for police power implied in the mandate and penalty was rebuffed, and the 10th Amendment continues to prevail against the intrusion of the federal government.

But just at the point where it seemed the mandate was about to go down, Roberts resuscitated it by launching into a logical backflip that would rival Abbott and Costello’s “Who’s on First” routine. Joining the four Court liberals to form a majority he wrote:

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 condition – not owning health insurance – that triggers a tax – the 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 Congress’s constitutional power to tax.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read.

Verrilli’s bumbling tax argument had hooked its prey – Roberts. The Court had unanimously agreed that the individual mandate was not a "tax" under the Anti-Injunction Act, thus allowing the ObamaCare case to be heard. But Roberts, searching for some justification to avoid throwing out ObamaCare, concluded that, notwithstanding what Congress called the mandate, it was a tax. ObamaCare became RobertsCare when he essentially rewrote it by interpretation. Thus, he explained,

The Affordable Care Act describes the ‘[s]hared responsibility payment' as a ‘penalty,' not a ‘tax.' That label is fatal to the application of the Anti-Injunction Act.… It does not, however, control whether an exaction is within Congress's power to tax.

In other words, sometimes ‘tis, sometimes ‘tain’t.

Stay tuned to the continuing saga next week.

The Pulpit Bully

In the tumultuous election of 1800, John Adams was denied a second term by the election of Thomas Jefferson, our third president. On his way out of the White House, Adams made a number of “midnight” appointments, among them William Marbury to be Justice of the Peace of the (Washington) District of Columbia. His commission was not delivered by the incoming President’s Secretary of State, James Madison.

Marbury filed a writ of mandamus with the Supreme Court in 1803 petitioning it to compel Madison to deliver the commission. Ironically, the Court’s Chief Justice, John Marshall, had been the Secretary of State for Adams and had signed Marbury’s commission.

While the Court agreed with Marbury that he had a right to the commission and that he had a right to remedy under the law, the Court also decided that it had the authority under the Constitution to review the legality of the acts of Congress. (That would have produced a “Wow!” in 1803.) Given its newly asserted authority, the Court decided that Congress could not expand the role of the Court beyond the role enumerated in Article III of the Constitution and therefore the Judiciary Act of 1789 under which Marbury brought his claim was unconstitutional. Marbury’s claim was denied.

Marbury v. Madison was a landmark case which established the right of the Court to judicially review the acts of a co-equal branch of government, the Congress, to assure that its laws conformed to the Constitution. Constraining the power of Congress within its constitutional limits was a big deal in the years before the Civil War when states’ rights were jealously guarded against encroachment by the federal government. Regrettably, it’s no longer a big deal.

In the years since the Civil War, more and more power has shifted from the states to the central government. During the Roosevelt New Deal era in particular, the relevance of the Court and Constitution was severely tested as the Court voided law after law pushed through Congress by Roosevelt. Only because Roosevelt was committed to be President-for-Life, before Death carried him off in its loathsome bosom, was he able to appoint eight of the nine Supreme Court justices and stop their constitutional meddling in his legislative agenda.

With the election of Barack Obama we now have the second coming of Franklin D. Roosevelt, thankfully restrained by the 22^nd Amendment which passed after Roosevelt died, but nevertheless possessing the same disdain for the Court and Constitution. Last week, standing between Mexican President Felipe Calderón, chief exporter of aliens to the US, and Canadian Prime Minister Stephen Harper, whose XL pipeline foolishly offered the US a way out of its oil shortage, the reincarnation of Roosevelt warned the Supreme Court not to mess with his ObamaCare law, whose constitutionality had just been argued before it. Speaking without benefit of teleprompter, Obama’s bizarre delivery sounded like words were dropping out of his brain directly on his tongue:

I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.

And I – I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that, uhhh, an unelected, uhhh, group of – of people would somehow overturn, uhhh, a duly constituted and – and passed, uh, law. Uh, well, uh, uh, this is a good example. Uhh, and I’m pretty confident that this, – this court will recognize that, uh, and not take that step.

Apparently the smartest man ever to hold the office of the presidency – and former instructor in constitutional law – hasn’t heard of Marbury v. Madison which every first year law student is required to know. Moreover, he hasn’t gotten his facts right – which is not a first for Obama. The claim of “unprecedented” ignores precedent going back to Marbury in 1803. All of the laws that have been totally or partially overturned since then initially became law under “democratically elected” Congresses. Who else would have passed them into law? Undemocratically elected Congresses? Unelected Congresses? The Tooth Fairy maybe?

Memo to Obama: here’s a list of 158 acts of Congress that have been partially or fully voided by the Supreme Court.

The “strong majority” to which Obama referred was a whopping seven votes. Seven! That was in a House that has 435 members and a Democrat party that had a 75-seat majority at the time. Not a single Republican voted for passage, so it had no bipartisan support, but the votes against passage were bipartisan because 68 Democrats voted with the Republicans against passage.

In order to get the bill through the Senate, which had lost its bullet-proof protection against filibusters, procedural chicanery had to be employed by using the rules of reconciliation – something totally unintended to pass legislation that is this sweeping.

Moreover, the majority of the American people opposed ObamaCare when it passed, a majority has opposed it continuously since its passage, and 61% in the most recent polling want it repealed. What do you call a country in which the political elite passes laws opposed by the people, arguably violating our principal governing document in doing it? Isn’t that a dictatorship?

The entire premise of Obama’s ludicrous assertions of “unprecedented” and “strong majority” is swept away by the facts. What could the man have possibly been thinking? Roosevelt was far more popular when he (wrongfully) took on the Court. Obama’s approval percentages have been bouncing around in the 40s for two years.

The day after Obama threw down the gauntlet before the Supreme Court, however, a three-judge panel of the 5^th Court of Appeals, which was hearing another case related to ObamaCare, took up Obama’s dare. Judge Jerry Smith, one of the panel, held the benighted view that the Court, the Executive, and the Congress were co-equal branches of government as set forth in that antiquated document called the US Constitution.

The DOJ attorney arguing the government’s case, Dana Kaersvang, seemed taken aback when Judge Smith asked her to explain Obama’s critique of the Court’s hearings on "ObamaCare" and Smith asked if Obama’s remarks challenged the federal courts' power to strike down laws passed by Congress. According to those present, Judge Smith became “very stern,” saying it wasn’t clear whether this president believes such a right exists. In Smith’s words:

I’m referring to statements by the President in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed – he was referring, of course, to ObamaCare – what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the Attorney General and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

Smith told Kaersvang that she had 48 hours to submit to the Court a three-page, single-spaced paper defending judicial review and that the homework assignment should “make specific reference” to Obama’s statements. It sure seems like the Court was demanding the equivalent of writing 500 times “I will not misbehave in class.”

Kaersvang, no doubt shaken that never before had The Great One been challenged or held accountable for using the bully pulpit to be a pulpit bully, delivered her term paper on time. It appropriately acknowledged the precedent of Marbury v Madison and the Court’s authority. Unmentioned by Smith or Kaersvang, however, is the historic practice of professional courtesy which restrains people in political leadership from commenting on cases that are currently before the court – something Obama either doesn’t know or respect.

But then this president has never restrained himself from commenting on many things about which wiser men would keep their mouths shut.

You’ll recall Obama butting in, unburdened with any facts about the case, to make televised remarks about the arrest of Harvard professor Henry Louis Gates. Obama’s remarks included calling the Cambridge, Massachusetts police "stupid." The police were investigating a neighbor’s call concerning what appeared to be a break-in. Since the Gates home had been broken into before, it was logical to everyone but Obama that this might be another, especially since the person seeking to enter was throwing his weight against the door. It was nighttime, Gates was uncooperative, and he was warned that his behavior was interfering with a police investigation. Gates is also black. What Obama called stupid would be what the police would have been called if they had not intervened and allowed the house to be robbed.

Then there is the recent tragedy involving the death of Trayvon Martin. Although police work is a local responsibility, Obama again waded in sans the benefits of the facts. He had to be careful, he said, so as not to interfere with a DOJ investigation. Yet the DOJ comment was made before any facts were known that would justify a federal investigation in a local crime Obama continued:

It is absolutely imperative that we investigate every aspect of this. … But my main message is to the parents of Trayvon Martin. You know, if I had a son he’d look like Trayvon. And I think they are right to expect that all of us as Americans are going to take this with the seriousness it deserves and get to the bottom of exactly what happened.

The emerging picture of Trayvon Martin may cause Obama to recant his comments about having a son who looks like Martin or acted like Martin. The cheerful baby-faced photo of him that was initially released to the media was later exposed to have been taken five years earlier. Confronted with this fact, the family and media were compelled to produce a more recent photo which shows a more sullen Trayvon. His rap sheet wasn’t that of a guy who minded his own business. And, of course, a red-faced NBC was caught red-handed by Newsbusters, a conservative media monitoring group, for editing the tape to make the alleged shooter appear to be a racist.

Contrast Obama’s comments on the Gates and Martin cases with this one.

A year ago this month, two British students visiting America got lost and wandered into a black housing project in Sarasota, Florida. James Cooper, 25, and James Kouzaris, 24, had been drinking – too much I might add – when witnesses testified that Shawn Tyson, a 17-year old black teenager told them that he’d seen two white “crackers” walking around in the neighborhood and he intended to rob them.

Confronted by Tyson, Cooper and Kouzaris told him they were lost and had no money and they begged to be let go so they could return home. "Since you ain't got no money, then I have something for your ass," Tyson recounted to a witness, then added that he shot the men several times.

Their bodies were found shirtless on the street with pants pulled down to their thighs. Wallets for both men were in their pants and contained money. The pants of Cooper had a cell phone and camera in the pockets. In other words, this was no robbery. Authorities later found that Kouzaris' blood alcohol level was 0.243 and Cooper's was 0.214 – well past Florida's legal limit for intoxication when driving, which is 0.08. They were too drunk to know the danger they were in.

Tyson sat emotionless when he was sentenced to life in prison last month. Because he was under 18, he was not eligible for the death penalty but his sentence did not permit parole.

Obama, however, made no comment concerning the killing of Cooper and Kouzaris – no call for soul-searching, no charge of stupidity, no sympathy for the victims of this senselessness killing by a ruthless black teenager about the age of Trayvon Martin, no identification with the loss of the parents like, “If I had sons like Cooper and Kouzaris …”

A friend of the murdered students told the UK Daily Telegraph this:

We would like to publicly express our dissatisfaction at the lack of any public or private message of support or condolence from any American governing body or indeed, President Obama himself. Mr. Kouzaris [the father of one of the victims] has written to President Obama on three separate occasions and is yet to even receive the courtesy of a reply. It would perhaps appear that Mr. Obama sees no political value in facilitating such a request or that the lives of two British tourists are not worthy of ten minutes of his time.

Obama is what he seems to despise in American society. He castigates the richest 1% of Americans, yet he is among them. He ridicules the privileged, yet doors were opened for his career that gave him privileged access few others enjoy. He is quick to infer racism in an injustice, yet he behaves like a racist. He criticized Augusta National for excluding women, yet he plays any course he wishes notwithstanding its rules about membership. He mocks the lifestyle excesses of the rich and their corporate jets, yet during his first presidential term he and his wife have partied like Roman emperors (at taxpayer expense) and vacationed using the most expensive plane in the country.

Moreover, Obama seems never to have grasped that he was elected to govern with a light touch, not to rule or to reign. Americans do not need their lives managed – indeed micromanaged – by an insatiable central government that is consuming their wealth faster than they can create it. The Founders correctly understood that whatever problems citizens needed government to solve were best solved locally by the states – i.e. by the government closest to the people.

All of Obama’s blather about the conservative ideology of the Supreme Court which brought about last week’s confrontations ignores that four justices have always been viewed as a slam dunk to uphold ObamaCare. Kagan’s “questions” often sounded as if she was all too familiar with the government’s case. At times she even seemed to be arguing it rather than objectively listening to the evidence. Her prior service as Solicitor General before her appointment to the Court would have caused a better person to recuse herself. Instead her performance in the hearings revealed her to be a political hack rather than a judge of the law.

In most of the cases that come before it, this Court is only one justice away from concerning itself with the enumerated powers of Congress, and then only occasionally. If the Court upholds the argument that ObamaCare is constitutionally within the provisions of the Commerce Clause, there is no limit on what future Congresses can do to the American people and therefore, there is no longer a need for the Constitution that has served, albeit decreasingly, to restrain government for over 220 years.

I predict that ObamaCare will be upheld as constitutional, making the 2012 election the most important election in the history of the Republic. It will likely be our last chance to preserve what Catherine Drinker Bowen aptly called “the miracle at Philadelphia.”

ObamaCare in Court

A Rasmussen poll taken July 11 showed a majority (53%) of likely voters want ObamaCare repealed. Since the law was passed in March 2010, weekly polls show the percentage of likely voters wanting it repealed has averaged 56%, ranging from a low of 50% to a high of 63%. In contrast, the percentage of voters opposed to repeal has averaged 39%, ranging from 32% to 44%.

In the almost 18 months since ObamaCare became law the much-ballyhooed claim that its popularity would rise after people understood it has failed to materialize. The 2010 elections swept out many of the Democrats in the House and Senate who voted for the law. But Republicans failed to win the Senate, and Obama remained in the White House making repeal of ObamaCare impossible until after the 2012 elections. ObamaCare is another unsustainable big government program like Social Security, Medicare, and Medicaid. Republicans are therefore planning their election campaigns as a referendum on Obama’s imperious makeover of American life with its intrusions and regulations, and ObamaCare will be Exhibit A in their argument.

However, even if Republicans win the Senate and White House and maintain their control of the House, the repeal of ObamaCare will not be easy. A simple majority in the Senate cannot pass legislation as can be done in the House. Republicans will need 60 votes to prevent filibusters, which they are unlikely to get. Moreover, it is harder to repeal a bad law than it is to prevent its passage. Unless voters scare Congress into action for repeal, the inclination in both houses will be to “fix” the most onerous parts of ObamaCare – which explains why so much of our laws and regulations are a crazy quilt of patches when starting over with a clean slate would have made more sense.

ObamaCare opponents have therefore hedged their bet on a legislative solution by turning to a judicial solution. This is an odd twist for the GOP, which is historically opposed to judicial activism and prefers to let Congress rather than the courts set the rules we live by. The well-known argument for a judicial solution, however, is that Congress overstepped its constitutional limits in passing ObamaCare with a mandate that requires every citizen to buy a product – insurance in this case – and if Congress has the power to compel Americans to buy insurance then there is no limit on what other things future rogue Congresses can force citizens to do or not do.

In pursuit of a judicial solution to ObamaCare, the Attorneys General for 27 states and organizations like the Thomas More Law Center have filed suits challenging the constitutionality of the mandate. Four district court judges have heard the arguments and two of them, liberals, decided the mandate was constitutional while the other two, conservatives, decided it wasn’t.

All of the district court cases have moved up to the appellate courts. Two of the three judges chosen to hear the appeal for the Sixth Circuit were nominated by Republican presidents, whereas Democrat presidents nominated two of the three chosen to hear for the Fourth Circuit and all three chosen for the Eleventh Circuit.

Notwithstanding its 2 to 1 Republican advantage, the Sixth Circuit appellate court ruled last month in favor of the mandate. The surprising switch-over was Judge Jeffrey Sutton, who clerked for Justice Antonin Scalia and was nominated to the bench by George W. Bush. Anyone longing for a migraine headache can Google his tortured opinion. In it Sutton muses and opines as thoughts spin like pirouettes from his brain to his pen, finally concluding with this verbal rim shot:

No debate in the forty years after the country’s birth stirred the people more than the conflict between the federalists and anti-federalists over the role of the National Government in relation to the States. And no issue was more bound up in that debate than the wisdom of creating a national bank. In upholding the constitutionality of a second national bank, not a foregone conclusion, the Supreme Court erred on the side of allowing the political branches to resolve the conflict. Right or wrong, that decision presented the challengers with a short-term loss (by upholding the bank) and set the platform for a potential long-term victory (by allowing them to argue that Congress should not make the same mistake again). There was no third national bank....

Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.

In other words, if you think a law is bad, the place to correct it is the ballot box, not the courthouse.

Judge Sutton’s opinion and indeed the Sixth Circuit outcome shows how unpredictable a judicial solution can be, even by conservative justices. There is no doubt that all of these cases are headed to the Supreme Court where – conventional wisdom holds – the four liberal justices (Ginsberg, Breyer, Sotomayor, and Kagan) will line up solidly for the mandate, the four conservative justices (Scalia, Thomas, Roberts, and Alito) will be just as solidly against the constitutionality of the mandate, and Justice Kennedy the Swing Vote Guy will decide the outcome as if the other eight were superfluous.

This “wisdom” is wrong for at least two reasons. First, it implies that Kennedy is the only thoughtful justice on the Court. Second, it assumes the conservatism of the Court’s conservative wing is homogenous, which it isn’t. Thomas tends to be an originalist or strict constructionist in his decisions, whereas Scalia, Roberts, and Alito tend toward judicial restraint even when congressional acts conflict with an originalist interpretation of the Constitution. While Thomas may be considered a likely vote against the mandate, the votes of the other conservatives can’t be predicted – just as Sutton’s.

The argument posed by the defenders of the ObamaCare mandate bifurcated early after it was attacked in court – vacillating between the right of Congress under Article I, Section 8 “To lay and impose taxes …” and “To regulate Commerce with foreign Nations, and among the several States …” Well, which is it? Is the mandate a tax or is it regulation of commerce?

Section 1501 of the ObamaCare bill did not create a tax. That section calls the $750 levy a "penalty." The defenders of the mandate, therefore, decided early on that the tax dog wouldn’t hunt and stopped building a legal defense around the congressional taxing power in Section 8.

I discussed at length Section 8’s third enumerated power in my January 8, 2011 blog, Our Amazingly Elastic Commerce Clause. Since health insurance is a modern contrivance, it’s not surprising to find its regulation absent in the list of powers granted to Congress 225 years ago. But as my previous blog noted, the Supreme and Appellate Courts have through the years allowed Congress to transgress its enumerated powers with such hair-splitting Pharisaical interpretations of the Commerce Clause that it’s a wonder the Justices could do it with a straight face. How they might argue favorably for the individual mandate will be no less creative, I’m certain.

One hopes the Court will confront these questions. How could the Commerce Clause possibly be interpreted to allow Congress to force free people against their will to buy a product or face punishment? And if the Court concurs that Congress has that right, was there any reason, then, for the Founders to list in writing the limited powers granted to Congress under Article 8, since an elastic interpretation of the Commerce Clause lets it do anything? Finally, why did the Founders deem it necessary to state in the Tenth Amendment, “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”?

An understanding of the rationale behind the Commerce Clause at the time of its writing to is needed to reason how its regulatory principle would apply to a modern society. (See Commerce Clause blog.) It’s clear in the historical context prior to the Constitution that the Founders gave Congress, rather than the states, the power in order that commerce could flow between the states. There was no intent to give Congress the power to regulate commerce within a state.

Thus Article 8 grants that Congress may regulate what is traded (commerce) and how it is traded (regulate) across state lines (between the several states).

Health insurance is not bought or sold across state lines. Moreover, “commerce” implies there is a willing buyer and willing seller. If the buyer isn’t willing and is forced to buy under protest, is that really commerce? And does it need regulation or police power enforcement?

Pesky thing, this Constitution! But ah! … not to worry. The New Deal Supremes found a way to get around these bothersome limitations 75 years ago by using the “necessary and proper” clause in Section 8 as an excuse for regulating nettlesome local conditions that impede federal power expansion. Here’s how this bit of judicial black magic works.

The last of the 18 enumerated powers in Section 8 grants to Congress the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers …”

Liberal constitutional exegetes on the Court have interpreted this clause in a way that gives cover to Congress when it claims the power to regulate intrastate commerce in violation of the Tenth Amendment and the principles of federalism. When intrastate activities “substantially affect” interstate commerce, Congress can elbow its way into the affairs of a sovereign state. One need only show “substantial affect” and the federal government supplants state government – or so the Court says.

How substantial is “substantial”?

In the infamous Wickard v. Filburn Farmer Filburn, planted and harvested more wheat than President Roosevelt’s overreaching New Deal Agricultural Adjustment Act of 1938 allowed. Roosevelt wanted to override free markets and drive up the price of wheat during the depression. When his transgression was discovered, Farmer Filburn was fined. He claimed he raised the excess wheat to feed to his livestock, not to sell – a fact not disputed by the federal government. Thinking he had the rights of a free citizen to grow grain to feed his chickens and cows, Filburn appealed to Roosevelt’s Supreme Court. Bad mistake. The Court told Farmer Filburn that if he hadn’t grown his surplus feed grain, he would have had to buy grain on the market to feed his animals. And if every farmer did what Farmer Filburn had done, why, the demand and the price for wheat would go down! There was no proof that a nationwide black market in feed grain existed, nevertheless Farmer Filburn stood guilty as charged because his actions could have had “substantial affect” on the government’s regulation of interstate wheat sales – even though they didn’t.

Don’t laugh. It really did happen. Google it for yourself.

“Substantial affect” was the basis of an equally infamous case – United States v. Wrightwood Dairy. The owners of the dairy held the benighted view that the powers of the federal government were limited and therefore argued that Roosevelt’s Agricultural Marketing Agreement Act did not apply to their commerce since its buying and selling activity was wholly within the state of Illinois. Roosevelt’s Marketing Act was another thinly-veiled interference in a free market by the federal government in order to prevent milk from becoming too expensive when bought and sold across state lines. Roosevelt’s Court rejected Wrightwood’s defense and deferred to the government’s argument that Congress had the power to regulate "the marketing of intrastate milk which competes with that shipped interstate [and] would tend seriously to break down price regulation of the latter." The Court argued that "Congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce," therefore the necessary and proper clause gave it "every power needed to make that regulation effective" when intrastate sales had a “substantial affect.”

Hard to believe, isn’t it?

These two decisions show how intrusive the creative interpretations of the Constitution by the courts can be.

There is little doubt how the liberal wing of the Court will decide the ObamaCare case. Their Dean, Justice Breyer, holds to a narrow interpretation of many constitutionally protected liberties. He claims belief in self-government, but his opinions are contemptuous of its most basic right: the right of individuals to manage their own lives without excessive government interference. Justice Ginsburg’s decisions reveal a mistrust of the relevance of a 225 year-old document in governing a modern society. Four of Justice Sotomayor’s six opinions, which she wrote for the majority when she was an appellate judge, were overturned on appeal, making one wonder if she is judging by the same constitutional document used at the Supreme Court. Justice Kagan has yet to show that she is undeserving of the appellation, “airhead.”

In contrast, it’s hard to predict how the conservative wing of the Court will decide. Justice Thomas, as mentioned, is an originalist. He will, therefore, skip over lots of precedent case law and interpret the constitutionality of the mandate by reasoning the Founder’s use of the terms “commerce,” “regulate,” and “between the states.” Justice Scalia is a toss-up. In some cases original intent appeals to him. But more often Scalia defers to judicial restraint, respecting legislated political solutions and respecting precedent case law – that hateful principle of stare decisis. Justice Alito and Chief Justice Roberts avoid activism and are swayed from originalism when hair-splitting distinctions involve political discretion. Both made this interpretative philosophy clear in their confirmation hearings.

Unless there is an egregious constitutional violation, Scalia, Roberts, and Alito are loath to substitute their judgment for the judgment of Congress on matters of policy; but who knows, they may see the mandate as more than a political policy.

Yet even if the four Court conservatives vote against the mandate, the deciding vote will be cast by Justice Kennedy. In his book Justice Kennedy’s Jurisprudence author Frank Colucci notes that Kennedy has voted with the majority more than any of his colleagues. He voted with the majority in Rowe v. Wade, but he wrote the majority opinion upholding the federal Partial Birth Abortion Ban Act. He votes like a Libertarian but denies that he is one. He is neither an originalist nor a believer in judicial restraint. His reading of the Constitution is moralistic, giving precedence to individual liberty and human dignity, rather than democratic principles.

Judge Sutton’s tortured opinion may therefore prove to be the best advice: if you don’t like a law, head to the ballot box not the courthouse. Conservative’s abhorrence of judicial activism, after all, can’t have it both ways. Conservatives can’t rail at liberal judicial activism and plead for conservative judicial activism. Hamilton’s Federalist 78 argued passionately for judicial review of “legislative encroachments” but also argued that of the three branches of government, the judiciary "will always be the least dangerous to the political rights of the Constitution." Conservatives must insist that it remain so.

Judge Sutton’s opinion recalled that the debate over a national bank was ultimately resolved by an elected official – President Jackson. The Supreme Court found the bank constitutionally necessary and proper in an 1819 decision. But Jackson said he would give the Court’s opinion "only such influence as the force of their reasoning may deserve." Then he applied his standard of “necessary” and “proper” and vetoed the reauthorization of the bank in 1832.

The Supreme Court has refused to fast track the mandate cases around the appellate courts. Whether it will wait for all four appellate decisions is unclear, but it’s unlikely that the case will be heard before the 2012 presidential election. A ruling against the constitutionality of ObamaCare would be a disaster for Obama’s reelection hopes and Chief Justice Roberts will avoid that possibility.

However, before the Court has its say, the electorate will have spoken in 2012. Let’s hope that this time voters have learned that elections have consequences.