Lack of Analysis on Justice Robert's Opinion of Obamacare

By Douglas V. Gibbs

When the recent Supreme Court ruling regarding the Affordable Care Act came down the pike my phone went nuts, and my email bulged with requests for my analysis. I have given a few opinions, and have written a handful of things, regarding the ruling, but apparently not to the satisfaction of my readers and listeners. My lack of an opinion on the Supreme Court ruling of Obamacare has led to an avalanche of requests for more details.

Okay, fine.

Here is my analysis:

Justice Kennedy and his conservative cohorts were right. Justice Roberts was wrong. The liberal justices were completely out of their freakin' mind.

In the end the opinions of these justices mean little to me. It was all a moot point and a waste of taxpayer money. The whole premise of the entire situation was wrong.

We live in a time when some are beginning to question whether or not the American Dream exists anymore, and the liberal left claims the American Dream is the government taking care of you. You are expected to believe that entitlements are the American Dream, that it is a good thing that some people are living off of other people through the redistribution of wealth. Then, in the case of the health care law, you are being told that health insurance is a right, and that since some people can't afford it, it must be provided. Obamacare, however, in its current form does not provide health insurance for those without it, but instead mandates that those without it purchase health insurance under the threat of penalty. Those poor uninsured folks have suddenly become free-riders, free-loaders, a drain on the system. In reality, the goal of the Obama administration is to break the insurance industry so that a single-payer system is the only choice remaining. Obamacare is about instituting socialized medicine by destroying an entire private industry.

The common perception is that if you are against the health care law, then you must love the insurance companies. The democrats have offered this fight as being an absolute. Either you want people to have health insurance, or you wish to take it away from them and leave them to suffer as those rich insurance companies line their pockets.

Reality dictates that there is a third option, and that in reality the reason I need not offer an opinion about the details of the Supreme Court ruling on the matter is because the courts shouldn't have been involved in the first place.

Long ago, or perhaps not so long ago, depending upon your perspective, there were no insurance companies (or at least the only insurance offered was to the well-off). The average citizen acted in a personally responsible way, saving for a rainy day, and they dealt with their physician personally.  The health care industry competed for the business of the average citizen, keeping costs down, and the quality of care high. They did whatever they could to earn your business, including making house calls, and working with folks by allowing them to pay the doctor back through interest-free payments. Then along came health insurance, and malpractice lawsuits. The insurance companies have deep pockets, and people no longer cared where they went just as long as their insurance covered it. Doctors, to avoid lawsuits, learned to test everything, and cover their rears by ensuring that no stone was ever left unturned.

As a result of our new health care culture, the cost of insurance and health care skyrocketed, and care lost a little of its quality. Sure, technology has been wonderful, and the overflowing wallets of the insurance companies, and the very lucrative nature of the health care industry, has been able to pay for these wonderful technological advances.

Government grows, always seeking a way to further intrude upon our lives. Health care is the ultimate tool for statism, enabling the government to control your actions, your eating habits, and even whether or not you should die, all in the name of the common good and protecting the taxpayer. In Europe, Canada, and various other locations around the globe, socialized medicine has become a way of life, and the control government has over those people's lives is at an all-time high. As time has passed, however, those centralized systems have proven to be failures, and in many countries in Europe the money being spent on government health services, and other entitlement programs, have eclipsed those nation's incomes. More is going out than is coming in, and the result is bankruptcy. The economies of these countries are collapsing because of leftist utopian schemes where the government replaces common sense, personal responsibility and self-reliance.

In America, the law of the land is the United States Constitution.  The Founding Fathers specifically made us a republic, rather than a democracy, and a nation that operates under the rule of law, not the rule of man.

In a democracy the majority vote wins, and runs the nation. The founders recognized that in a democracy, once the people realize they could vote themselves gifts from the treasury, entitlement programs would begin and the politicians would use these entitlements as a way of buying the votes of the people.  These entitlements destroy individualism, and once more than fifty percent of the people become dependent upon the government, the producers will be outnumbered, and financial collapse is the inevitable result.

The way to stand the test of time, and avoid such a collapse was to take the government out of the hands of the whims of people, and establish a system of just laws that the nation must follow. This is called The Rule of Law. The Constitution is that law.

The will of the people is fine as long as it follows the law. What has happened is that the law (Constitution) has been shoved aside, and Justice Roberts in his opinion stated that elections have consequences, specifically writing, "It is not our job to protect the people from the consequences of their political choices." True enough, but by saying that he declared that it didn't matter what the law says, it all comes down to the vote. In other words, he essentially declared that we are a democracy.

If we were following the law, what Justice Roberts had to say, or what any of the other justices had to say, would be a moot point. However, by allowing these justices to ignore the express powers granted by the Constitution, and then rule as they see fit based on their errant "interpretations" of the Constitution (which is based more upon case law, than what the Constitution actually says), we have let go of the rule of law, and are embracing the rule of man.

By studying the original intent of the writers of the Constitution, and the congressional records regarding the debates over the various amendments, it is possible to fully understand the law of the land, and to realize that not only is the federal intrusion into the health insurance industry by the Affordable Care Act unconstitutional, but that the whole process of the health care case working its way through the courts and winding up in the Supreme Court was a complete waste of taxpayer money.

Simply put, the federal government has no authority to be involved in the health care industry in any way, shape, or form, and the federal court system, including the Supreme Court, has no authority to determine whether or not the law is constitutional. The 26 States that brought the lawsuit should have, instead of suing, nullified the law because in the end it is the States that are the final arbiters of the Constitution, not the courts.

The concept that leads one to believe the courts have the power to determine constitutionality is called Judicial Review. This power was not granted to the courts by the States in the Constitution, but was seized by the courts in John Marshall's opinion of the Marbury v. Madison case in 1803 as a means of giving the courts a way to usurp the Constitution, and bend it to mean anything they wished.

Remember, the Constitution established the federal government to be a limited government, with its authorities expressly enumerated on the pages of the U.S. Constitution. Any authority not granted to the federal government in the U.S. Constitution, or prohibited to the States, is a State authority (Tenth Amendment).

The Supreme Court's ability through judicial review to determine if a law is constitutional completely opposes the concept of limited government. The power of Judicial Review strengthens the central government, giving it more opportunity to act in a tyrannical manner. The ability to determine if something is constitutional is the power to decide if the federal government has an authority. Since the Supreme Court is a part of the federal government, anytime the High Court determines the constitutionality of a federal law, it is literally a case of the federal government deciding for itself its own authorities.

Despite liberal opinions that state the judicial branch was established to be a check against Congress, it was not, and in reality there were a number of delegates in the Constitutional Convention in 1787 that argued against the creation of the judicial branch in the first place. Once created, the judicial branch was expected to be the weakest of the three branches of government. It was the two Houses of Congress that were originally designed to be checks against each other. The House of Representatives was the voice of the people, the Senate was the voice of the States, and they checked each other, while working together to check the executive and judicial branches. As for the party or parties responsible for determining the constitutionality of federal law, that task falls upon the States, and the people. As the final arbiters of the Constitution, the States have the authority to ignore (nullify) unconstitutional laws. If the law is unconstitutional, then it is illegal, and therefore the States cannot be compelled to follow those laws.

Thomas Jefferson wrote in 1798 in a document drafted at the request of the members of the Kentucky legislature, "Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government . . . . and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . . that the government created by this compact [the Constitution for the United States] was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; . . . . that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; . . . and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorised by the Constitution, shall be exercised within their respective territories."

The U.S. Constitution was written in a manner that grants express powers to the federal government. If a need for an issue to be taken care of by the federal government arises that is not authorized by the Constitution, then the appropriate procedure would be for the federal government to request that authority by proposing an amendment, and then the States would choose whether or not to grant that authority by whether or not they ratify the amendment. The creation of the federal government was orchestrated by delegates representing the States. The States gave the federal government a few of their powers for the purpose of protecting, preserving, and promoting the union. Prior to the Constitutional Convention in 1787, the States held all powers - which means the States have original authority over all governmental powers.

The very idea that the federal courts even have the authority of judicial review where the courts can strike down laws based on its interpretation on whether or not the law is constitutional is ridiculous. The very idea of judicial review is at complete odds with the idea of limiting principles as provided by the U.S. Constitution. The courts may have an opinion on the matter of the constitutionality of a law, but they hold no legislative power. On the federal level only the Congress, as per Article I, Section 1, has legislative powers, which is the ability to create law, modify law, repeal law, et cetera. Therefore, the courts have no authority to strike down a federal law.

Then, one may ask, how can the Congress, when passing unconstitutional laws, be stopped?

Nullification.

The 26 States that sued the federal government over the Affordable Care Act should have never sued in the first place. All they had to do was refuse to implement Obamacare. What was the federal government going to do? Send troops to force them to comply?

This is why I offered little analysis regarding the opinions of the Supreme Court justices over the Obamacare case. The ruling should have never happened, and by offering an analysis of the various judges' opinions, I would have been lending credibility to the very existence of the case in the first place. The legal case regarding Obamacare was the case that never should have been, and as a result, the opinions of the justices mean nothing.

-- Political Pistachio Conservative News and Commentary

Econ. Prof: 80% Students Say American Dream is Liberal Entitlements - A Conservative Teacher

Kentucky Resolution, Jefferson's Draft, 1798 - Avalon Project

A democracy is always temporary in nature - Free Republic (correction to post, should be Alexander Tytler)