SCOTUS: Dissenting Opinion Wins, Majority Opinion Fails, In My Opinion

Upon reading NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF
HEALTH AND HUMAN SERVICES, ET AL., it became evident early on that double talk was part of  Justice Thomas’ legal scholarship found in this case.  Immediately one question became apparent, which was how can the Government and the Majority Opinion argue that The Requirement to Maintain Minimal Essential Coverage, also known as § 5000A, is not a tax but a penalty in order to comply with the Anti-Injunction Act, but is a tax in order to be found constitutional?  Ironically, later in the brief, found in the dissenting opinion, the very question is asked, “The Government and those who support its position on this point make the remarkable argument that   §5000A is not a tax for purposes of the Anti-injunction Act, see Brief for Petitioners in No. 11-398 (Anti-Injunction Act), but is a tax for constitutional purposes, see Petitioner’s Minimum coverage Brief 52-62.” (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting).   How does the Court decide to hear the case based on the argument that this is not regarding a tax, but rather a penalty, and how then does it decide that the Congress meant  a tax when it specifically used the term “penalty” eighteen times in § 5000?  The Majority Opinion minced the meaning of these words in order to uphold the Constitutionality of the Affordable Healthcare Act, while using the opposite term in order to find merit in hearing the case. Evidence of this is found in J. Roberts’ briefing on page 2 of the syllabus,

“But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–15.

The dissent responded to this issue in these terms:

“What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists.” pg.27-28 of J. Scalia, J.Kennedy, J. Thomas and J. Alito’s dissenting.

A penalty implies that a law has been broken and justice must be served in the form of said penalty.  The Government argued that this is no longer a penalty but a tax for choosing not to spend income on the mandated health insurance requirement.  The Dissent argued that the Court has made a clear line between a tax and a penalty saying, “‘…a penalty…is an exaction imposed by statue as punishment for an unlawful act.'” (United States v. Reorganized CF&I Fabricators of Utah, Inc.).  The language that Congress used was specific to a mandated requirement and it attached a punishment in the form of a penalty to said requirement, not a tax.  The Court decided to rewrite the legislation, over reaching it’s powers, by changing the terminology from penalty, as prescribed by Congress, to tax, in order to find constitutional the Government’s petition that because Congress has the power to tax and  The Requirement to Maintain Minimal Essential Coverage is indeed constitutional.

Again Scalia in dissent states:

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

Justice Thomas and the majority became part of the Legislative Branch in their opinion.  Instead of letting  Congress correct the issues at hand, keeping it close to the people, and therefore allowing the people to have a voice and the ability to throw out of office those who do not listen to their concerns regarding this issue, the Court became sovereign in this matter by upholding the constitutionality of a section that affects the individual, as well as the State and the Nation as a whole.  Judicial activism joined hands with a Congress bent on pushing through a flawed legislation while ignoring the majority its citizens who voiced its disapproval of this bill. The Court has again changed the face of this Nation leaving “We the People” gagged and bound on this issue that most would like to see repealed.

According to Rassmussen, on Monday, June 25, 2012, the latest Rasmussen Reports national telephone survey shows that 54% of Likely U.S. Voters at least somewhat favor repeal of the health care bill, while 39% are at least somewhat opposed.  The report stated that most voters feel the same as they did when Congress passed the bill in March 2012, and that the desire for repeal has been steady for years.  The turn over in Congress after the bill passed, as well of the fight, and subsequent lawsuit demonstrates the voice of the people, and yet, the Court has found a way, through verbal shenanigans, to reword the Congressional bill, while ignoring the vast over reach of power that will ultimately hurt the very citizens for which the represent.

Ironically, the very people the Government says it desires to help, it hurts by strong arming the States to follow suit or look like the bad guy by refusing to go along with the new Medicaid expansion.  Once again this Administration passes the buck of responsibility for its policies onto others, only claiming victory when something positive happens.  The Court states that “Congress may not cross the ‘point at which pressure turns into compulsion, and ceases to be inducement.” (Steward Machine, 301 U.S., at 590. Accord, College Savings Bank, supra, at 687; Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc.). If this applies to States when they refuse to accept grants and money from the Government, how is it that the citizens that make up the States do not achieve the same meaning when they choose to not buy mandated insurance?  How is it coercion at the State level, but constitutionally acceptable at an individual citizen level?

The Administration ignores the very concept of balance of power put in place through Federalism by attempting to force the States hand into accepting the Medicaid Expansion.  J. Kennedy dissenting in Davis, states, “Coercing States to accept conditions risks the destruction of the “unique role of the States in our system.” Again, as stated in Printz, and presented in the dissent, “it may be state officials who will bear the brunt of pubic disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.”

This is precisely what has happened to the individuals who make up the States and this very Nation.  The Federal Government that has ignored the voice of its electorate regarding this issue and by placing it in the hands of the Supreme Court, has taken away the built in electoral ramification and blocked its ears ignoring the people.  The Court itself has violated the citizen of the United States by disregarding this very argument when the individual is concerned. The ability to “un-elect” the Supreme Court Justices makes this ruling all the more grievous as it makes it all the more difficult to undo foolish policy.

When a State chooses not to accept the Medicaid Expansion, the Court finds the penalty as coercion and therefore unconstitutional;  but the Court finds, at the individual citizen level, the coercion of taxation for not accepting the Individual Mandate as constitutional.  The tax is not a tax, but a penalty, that becomes a tax and again and the citizens are hurt by the very people who are elected to be our servants.

All is not lost, but the fight for liberty has again been highlighted by a Government that has grown too big for its britches and a Court that continues to rewrite the Constitution that belongs to the People of the United States. We have the election, we can decisively fight back, but we cannot lay down, until the Government heeds the voice of its constituents and this failed legislation is repealed.

A final thought,

“The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.” Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July5, 1819, in John Marshall’s Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969).

This ruling is less wise, it is unconstitutional and therefore we must fight back in the coming election.

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