Et tu, John Roberts?

That’s not the first time I disagreed with a Supreme Court decision. Probably won’t be the last.

It is a good reminder me that you can’t count on a small group of folks — no matter who they are — to agree with you. Just ask those who felt the Supreme Court put Bush in power in 2000.

And, after all, they don’t even agree with each other. It was a 5-4 decision. That means 4 Supreme Court justices disagreed with 5 other Supreme Court justices.

I found something a bit humorous while listening to the radio on the way home from work. Several news outlets were featuring folks who were elated by the Supreme Court decision. Several said that they now would be able to afford health insurance.

There’s an old saying in poker, if you don’t know who the patsy is, you’re the patsy.

These folks are the patsies. They currently choose not to buy health insurance. They will soon face a $2,000 fine for making that same choice. Congratulations to them.

It’s as if while cheering a decision upholding someone’s right to slap you, they proceed to slap you. You get a stunned look on your face, then realize, that’s exactly what you were cheering for a second ago, so you raise your hands and cheer again. Hooray! Then they slap you again.

As far as John Roberts goes, perhaps he took the Intrade odds, got rich and figured if the American people really don’t want it, they’ll vote in November.

Recommended links

Is there something wrong with the Administration’s Constitutional vision? Ilya Shapiro thinks so. In the Wall Street Journal, he highlights three recent Supreme Court decisions holding government within the limits of the Constitution. What surprised me is that two of the decisions were unanimous.

From the piece:

As the world awaits the Supreme Court’s ruling on ObamaCare, there’s a larger story that the pundits are missing: the court’s rejection of the Obama administration’s increasingly extreme claims on behalf of unlimited federal power.

This term alone, the high court has ruled unanimously against the government on religious liberty, criminal procedure and property rights. When the administration can’t get even a single one of the liberal justices to agree with it in these unrelated areas of the law, that’s a sign there’s something wrong with its constitutional vision.

I couldn’t agree more with Luigi Zingales’ observation, also in the Wall Street Journal, that increasingly the most talented aren’t getting ahead in the U.S. due to early stage crony cancerism.

I thought I already posted this

I was digging through some of my recent drafts and found this one, which I thought I had posted.

Here’s an outstanding post from Dan Mitchell on his blog International Liberty, E.J. Dionne Forgets that America Is a Constitutional Republic.

In it, Mitchell asks of Dionne:

Did he not learn about separation of powers in school, and that the courts are supposed to protect us against tyranny of the majority emanating from the legislature?

I remember covering the separation of powers in my 9th grade government class. I didn’t gain a good understanding of why that was important then. I’m not sure if it was just such an abstract concept for me to grasp as a 9th grader that took freedom for granted or if the teacher didn’t do a good job of teaching it.

What about you? Did you know that the Constitution was intentionally designed to separate powers of government help protect us from tyranny in various forms, like government tyranny and the tyranny of the majority?

Later Mitchell writes:

I have no idea of the Supreme Court will make the right decision, but I am overwhelmingly confident that the Founding Fathers didn’t envision mandated health insurance as a function of the federal government.

I’m fairly certain that not every Justice will agree on this case. It will be interesting to see why they disagree.

Dumb or Deceptive?

I was planning to write a post about how Obama’s recent characterization of the Supreme Court was either dumb or deceptive. But, I discovered that I don’t have too. Stephen Presser did a fine job at CNN in his opinion piece, Obama should know better on Supreme Court’s role.

Presser writes:

Setting aside the point that the ACA did not pass with an overwhelming majority [as Obama claimed], but by a party-line vote in the Senate and seven votes in the House, and without the support of a single member of the Republican Party, the most astonishing thing about Obama’s diatribe was the fundamental misunderstanding of our constitutional tradition it revealed.

Since 1788, in the famous defense of the Constitution set forth by Alexander Hamilton in the Federalist Papers, it has been understood that it is the task of the Supreme Court to rein in majoritarian legislatures when they go beyond what the Constitution permits.

This is not, as Obama implies, judicial activism, or political activity on the part of the justices. This is simply, as Hamilton explained, fidelity to the Constitution itself, fidelity to the highest expression of “We the People of the United States,” the body whose representatives ratified that Constitution.

Judicial review is not usurpation — it is the manner in which the rule of law is preserved in this nation. It is certainly true that sometimes courts, and even the Supreme Court, have erred in their interpretation of the Constitution, and some legislative acts that clearly were permitted by the Constitution have been struck down. But if the ACA’s individual mandate is rejected, this will be fully within the legitimate exercise of judicial powers.

Call me crazy, but I think our elected officials should have a good understanding of the roles of the various branches of government and the key underlying principle of the Constitution — checks and balances on power.

It would be great if the media asked political candidates seeking Federal office to explain the roles of the Executive, Legislative and Judicial branches of the Federal government and how they can check and balance each other so we know if we are voting for someone who will follow his or her oath to preserve, protect and defend the Constitution or if we are voting for someone who views the Constitution as little more than a distraction or worse.

With everything there are trade-offs. No matter what the Supreme Court decides, I believe a positive outcome of this episode is that America is getting a much-needed lesson on checks and balances of power and maybe that will encourage voters to carry out more due diligence on their candidates.

My Individual Mandate

It’s simpler and more effective than the Obamacare individual mandate. And, it is Constitutional.

Rather than forcing people to buy insurance or pay a penalty to the government, here’s my mandate:

If you choose not to purchase insurance and you need medical care, we will expect you to pay for your medical care.

Some will say, “But what about the people who can’t afford insurance?”

I have three responses to those people.

First, check out the insurance rates in Missouri. A $5,000 deductible plan for a family of four runs around $300 a month. That’s not dirt cheap, but it’s affordable for many people. It’s about like a car payment.  If insurance is more expensive where you live, I suggest that you give serious thought as to why (psst…It’s because of your state insurance mandates — maybe you should elect a legislature that will enact affordable mandates).

If someone has new cars, premium channels and a smart phone data package, don’t expect me to feel sorry for them if they say they couldn’t afford insurance.

Second, if we got government out of medical care and insurance, we’d have even cheaper solutions that would make it even more affordable. Government involvement distorts the incentives (e.g. emergency room care mandate) that makes it more expensive.  Without government involvement and restrictions, we’d see more solutions along the lines of $4 Walmart prescriptions.

Third, after that, if you still have some people who can’t afford insurance I’d offer two solutions:

1. Donate money to a charity that provides affordable insurance those folks.

2. If we still must do a government solution, target low-income folks with a medical care credit that they will use to buy health insurance and pay deductibles. Why break the system for everyone else? Just fix it for them.

Update: As I was writing this, it came to my attention that the administration is trying to rebrand its mandate as an “individual responsibility” clause.  I think my mandate better fits that description.

Update 2: I like MikeM’s response in the comments to those who ask, “What about the people who can’t afford insurance?”

If they were expected to pay for their medical care, then they “could not afford not to have insurance.”  They would figure something out.

Commerce Clause for Dum-Dums

The Supreme Court hearing this week is about this one sentence from our Constitution:

From Article I, Section 8: The Powers of Congress:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

Most people know this as “the Commerce clause.”  We usually hear the Commerce Clause as “Congress has the power to regulate Commerce”.  I wonder how many people know there’s more to it?

In my view, the debate breaks down as follows.

On one side we have people who incorrectly believe this statement empowers our Congress to force citizens of foreign nations and Indian tribes to buy something.

On the other side are people who correctly understand that this statement empowers our Congress to settle trade disputes between states and with foreign nations and Indian Tribes, on behalf of the U.S.

Some folks may claim to believe that this statement empowers Congress to force only U.S. citizens to buy things.

Such people would need to believe two things that I find far-fetched coming from a group of authors who were concerned about limiting the power of government to protect liberty from government:

  1. There is a significant difference between the meanings of the words “with” and “among” as used here.
  2. “States” or “among the several States” actually means “citizens of the United States”.

I find it far more likely that a group trying to preserve individual liberty from government after the learning the lessons of central and arbitrary power firsthand (granted, I admit, not all founding fathers was pure in this regard), actually meant this to be a rather dry power of Congress to settle trade disputes that arose due to laws passed by state legislatures.

For example, this power would be used to settle a dispute if two state legislatures disagreed on how they were to share a common waterway.

No matter the Supreme Court outcome, I’m not convinced that the authors of the Constitution meant this to be an absolute grant of power for Congress to do anything that sounds good that can remotely be tied to a trade between parties.

If that were the case, there wouldn’t be much need for the rest of the Constitution — including Article III, which vests the judicial power of the U.S. in the Supreme Court.

“My job is to apply the law.”

This post continues the thread about the Constitution and the idea of better understanding the intended role of judges and the judicial branch of government.

Thomas Sowell writing about Supreme Court Justice Oliver Wendell Holmes in Dismantling America (p. 286):

Holmes understood that a Supreme Court justice was not there to favor some people or even to prescribe what was best for society.  He had a very clear sense of what the role of a judge was — and wasn’t.

Justice Holmes saw his job to be “to see that the game is played according to the rules whether I like them or not.”

That was because the law existed for the citizens, not for lawyers and judges, and the citizens had to know what the rules were, in order to obey them.

Legislators existed to change the law.

Holmes wrote that he did not “think it desirable that the judges should undertake to renovate the law.”  If the law needed changing, that was what the democratic process was for.  Indeed, that was what the separation of powers in legislative, executive and judicial branches by the Constitution of the United States was for.

Another judge said to Holmes while riding in a carriage: “Do justice, sir.  Do justice.”

Holmes had the carriage stopped.  “That is not my job,” he said.  “My job is to apply the law.”

Wise words.