This morning the Supreme Court announced its decision upholding the key provision in the Affordable Care Act, a.k.a Obamacare. It is apparently a huge and complex decision, and is now available in text form online here.
The political and legal analysis will be coming soon from others far more qualified than I [UPDATE: The legal dissections have begun, and you can’t do better than to start here] , and while I am deeply interested in them, that’s not my job. I won’t be able to read the opinions and the various concurring opinions and dissents, not to mention digest them, for quite a while, but some ethical verdicts are already evident from what I do know:
1. In a time-honored device used by Supreme Court Chief Justices through the centuries, Chief Justice Roberts voted with the majority in order to be able to craft the majority opinion. This was the right case for that tactic, and he showed wisdom and guts in doing it. Roberts sided with the so-called liberal wing of the court (Justices Kagan, Sotomayor, Ginsberg and Breyer) to uphold the individual mandate—the provision requiring citizens to buy health care insurance or pay a penalty—- while rejecting the two justifications for it that conservatives found most constitutionally objectionable: the Commerce Clause and the “necessary and proper clause.” Foiling prognosticators, Roberts created a majority ruling that approved the linchpin mandate as a tax, applying the principle that whether or not the measure was called a tax (the law itself never uses the word), its operation and structure met the Constitutional description of one. Thus Roberts simultaneously blocked the slippery slope of Congressional dictatorship raised by the mandate’s chief detractors (“Will Congress pass a law requiring us to buy Volts, or join a health club?”) while still allowing major legislation duly passed by Congress to survive. It was a performance worthy of Solomon, and whatever one thinks about the healthcare law itself, Roberts deserves praise and admiration for taking this bold route.
2. Roberts’ opinion highlighted the deceit and cowardice of the Democrats in intentionally deceiving the public about the fact that the mandate was a tax. There is no doubt that this was done to curry public support in a tax-averse environment, and as a result, the Obamacare architects foolishly risked the entire bill by officially raising it on Constitutionally shaky ground. Had Roberts voted, as he usually does, with his right-leaning colleagues on the Court who were ready to strike down the mandate as violating the Commerce Clause, the whole law might have collapsed. The cynical “the ends justify the means” political strategy to pass the law worked, which, unfortunately, will encourage future lies to the public by both parties. In short, President Obama and company got the law passed by insisting the mandate wasn’t a tax, and the law survived because it really was one, because the Supreme Court has a wise and courageous Chief, and because the Democrats were lucky. They still lied, and I, for one, am not forgetting or forgiving it.
3. It will be interesting to see how the unscrupulous liberal critics who have been screaming that if the Roberts Court struck down the law, it would be a disgraceful example of judicial activism backtrack now. Roberts’ vote and opinion, which saved Obama’s signature piece of legislation and maybe his presidency, was blatant judicial activism of the best kind: he recast a provision as a tax that the law itself never called a tax, to allow “the will of the people” to stand. But since it accomplished what all those supposed “judicial activism” foes wanted, everything is hunky-dory. Hypocrisy watch!
4. Republicans and conservatives are already saying that Roberts was “bullied” into siding with the Administration, because of a spate of articles in Slate and elsewhere arguing that he had to vote with the liberals to preserve the “integrity of the Court.” The disrespectful treatment of a distinguished legal scholar and honorable judge by both conservatives and liberals is staggering. Roberts has his job for life, and doesn’t have to cater to anybody. He has pledged, under oath, to uphold the Constitution. Absent hard evidence to the contrary, he deserves to have his decision accepted on that basis, and not as a craven response to threats and warnings.
5. Nevertheless, the effort by Democrats, liberal pundits and commentators and President Obama to lay the groundwork, in advance of the decision, for a public campaign denigrating the Court as politically biased—should Obamacare have lost—was divisive, cynical, dishonest, unfair, disrespectful, disgraceful, despicable and wrong. They owe the Supreme Court—not just Roberts but every sitting member—an apology, as well as the American public. Shame on all of them. Of course, no apology will be forthcoming, because they will all be congratulating themselves on the presumption that their intimidation tactics “worked.” In a word, yechhhh.
6. Let us give a collective razz to Fox News and other networks whose reporters foolishly read the beginning of the majority opinion, declaring that the mandate was not a Constitutional exercise of the Commerce Clause, and sent out bulletins that the law mandate had been overturned. Why are Supreme Court reporting jobs being filled by inept tyros who don’t know that the final rulings are at the end of decisions, not the beginning?
7. As I expected, at least unless something in the opinion suggests otherwise, the U.S. Supreme Court discharged its Constitutional duty with care, consideration, professionalism and integrity.
If only we could say the same about the other two branches of the government.
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Facts: USA Today
Sources:
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at jamproethics@verizon.net.
Ethics Alarms 
Great initial analysis. The ruling is published and at least FoxNews is hosting the document. I’m sure it’s just about everywhere now.
Thanks, Tim. I just added it.
I agree.
The only way the law could survive is to call it a tax. That was the case with social security. The question now is whether the democrats, who kept insisting that it wasn’t a tax will now stand by it as a tax, perhaps the largest in American History.
If it is a tax, one wonders how it passes muster under Article I, Section 10(4) of the Constitution which prohibits the United States from laying a “Capitation, or other direct, Tax . . ., unless in porportion to the Census or Enumeration herein before directed to be taken.” That’s why it took a constitutional amendemnet to levy the income tax. I haven’t read the full opinion yet, so I don’t know if this was an argument that was even raised.
I’m working on it!
Jack, it’s the Dred Scott decision of the 21st Century, a wrong-headed assault on personal liberty and choice.
The Dred Scott decision was also Constitutionally correct. As Roberts says, SCOTUS should not be evaluating outcomes, just the law.
I should also add that the case before the court was not about personal liberty at all, but whether the act was authorized by Article 1.
Other challenges on the basis of personal liberty or equal protection are still open. In fact, there is a plausible equal protection challenge. Why is only health insurance burdened having to cover clients with pre-existing conditions, while auto or life insurance are exempt. Why does HealthNet have to cover someone with pre-existing diabetes, but Geico does not have to cover someone with pre-existing drunk driving convictions, or MetLife does have to cover someone with pre-existing death?
1.) I am shocked by this decision, and I agree with your analysis of Robert’s Judgement. To me, Healthcare is 99% about Money and Profits, and 1% about the actual “care” of the people’s “health”. Like a Jerry Lewis muscular dystrophy telethon, cure the disease and no more money. There’s more $$$ in treatment & management then in prevention and cure.
I was sure that the mandate would be struck down as a whole.
2) So the “d”emocrats used deception – if it is true, shame on them. But tell me – who exactly is playing fair in this day and age? In the upper echelons of power, it is as deceitful, Machiavellian and diabolical as ever. There is no middle ground, no compromise.
In reading another blog, which is NSFW btw, the analogy they use is spot on, using ever-popular “war jargon,” – http://bit.ly/ODTufB
“Quantitative Easing” is just code for Inflation – and inflation is a silent, roundabout and completely unfair Tax upon the poor. Norqvist and his “pledge”, the evils of government, the “job creators” shirking their responsibilities by hiding their wealth and shipping the jobs overseas, while hollowing out the wealth of this country while hiding behind their Corporate Tax Shelters – on and on and on. So be as mad and hold a grudge against the “d”emocrats forever and ever – but this is the reality we are creating for ourselves. And it doesn’t need to be this hideous.
A good place to start would be to video.google “the money masters” – that will give you some insight to who is holding the puppet strings.
Dittos Tim on the compliment to Jack, on his initial analysis. Proactively, I tried to sum up my thoughts on the ruling that I was anticipating (which is basically as it has turned out), by adapting the chorus of an old (1939?) Christian hymn, “Victory in Jesus” – thus, wrote the following, yesterday:
O Victory for Tyranny!
Tax the People infinitely!
Brutes have sought us,
Now they’ve caught us,
And own all our money.
They love to spend what’s not due them,
Then borrow more, then say “Screw them!”
They’ve plunged us to bankruptcy,
Beneath a red-ink flood.
Oh my god the Republic is doomed!! Those commie bastards on court have turned their back on the brave men and women who fought and died for this country by passing this obvious communist piece of legislation! What’s next the singing of Internationale in school?
I know where you can have your tongue surgically removed from your cheek—that’s gotta hurt!
Hey its hard work being a smart ass!
I just asked two friends who are opposite side of the issue to explain their positions and neither one could beyond “Its great for the country! ” and “Its going to ruin the country!” The whole damn country is populated by brainless sheep who willing to bleeet out what ever their politcal masters tell them to say. God forbid you have to formulate an original thought.
I agree 100% Bill! I take everyone at their word here – good to know you have a sense of humor – which is missing drastically from not only our politics, but also reality in general.
So now we have to actually deal with the problem of healthcare. This bill and the Supreme Court sideshow were merely smokescreens to keep the country from having to actually deal with our healthcare problems of cost and availability. Despite its name, this bill was no more about affordable health care than “motor voter” laws were about getting people to register to vote at the DMV. This bill was about mandatory health insurance, which will make health care more expensive (make the problem worse). Before this law, health care costs were 16% of the country’s GDP. That makes it roughly the same amount of expenditure of the entire federal government. Now that will go up because
•more people will be insured (~20% more)
•people will have better insurance coverage (the cost of mine went up 65% to comply with the new regulations)
•insured people pay more for healthcare (For example, a friend of mine had a baby at roughly the same time as my wife. We had insurance, they chose to be uninsured, because it was cheaper than insurance. Their cost was $1200 total. My cost was $1200 for my deductible and my insurance paid an additional $4000).
Can the economy handle the cost of healthcare rising to 30% of the GDP? In Europe, this value is 8-10%. I would guess it can’t if you look at a quick breakdown of our GDP (these numbers were from 2009).
healthcare 16%
federal taxes 17%
state and local taxes 24%
stock fees 5%
interest of private debt 10%
amount left over for everything else 28%
Why are healthcare costs so high? Well, you could look at the charts at the two sites below and get a hint (I linked two sites because they are the two extremes I have found. The average value of what physicians make varies widely by source) . We pay these people too much. It isn’t just the doctors. In my area, phlebotomists make $17/hr. Phlebotomy is a 1 semester program after high school. Many of these medical ‘technicians’ with 1 semester to 1-year community college degrees make as much money as college professors with Ph.D.’s. I can’t afford these people. I can’t afford to pay someone who makes $400,000/year to change my oil, much less perform a multi-hour operation on me. A two-hour medical procedure can cost as much as I make in 1 year! I just can’t afford it, and how in the world can you justify such costs?
Then we have the problem of availability. We don’t have enough primary care providers. This is because the AMA has been claiming for decades (until ~2008) that we were on the verge of a physician “glut”. The AMA fought to keep the number of medical students down by restricting the amount of money available for residencies (via lobbyists). Physicians in this country aren’t distributed per person, they are distributed per-income. That is why the number of physicians in Massachusetts is 3x higher per person (4.5 per 1000) than in my state. How are you going to more than triple the number of physicians in my state? Where will you get them and whose money will you use to pay them to keep them in the lifestyle that they feel is due to them?
Now that the fight over taxing us for mandatory health insurance is over, I welcome the Obama administration’s plan to deal with these actual healthcare problems.
http://www.practicelink.com/magazine/vital-stats/physician-compensation-worldwide/
http://www.theatlantic.com/business/archive/2009/06/do-doctors-deserve-to-be-paid-less/19521/
A great solution would be price controls, setting prices which doctors may legally charge to anyone and imposing the death penalty on those who defy price controls.
What would be the side effects?
We already have these controls. We have insurance companies setting rates, the AMA rationing doctors so the rates can’t fall and people don’t have timely access to healthcare. Why not outlaw health insurance and force doctors to charge rates that people can afford (like healthcare was circa 1970)? Why not let the states regulate physicians and allow the medical schools to expand?
How is health insurance different from auto, life, and fire insurance that it should be outlawed and the other forms of insurance should not?
Should all insurance be outlawed?