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Should Think Twice

July 28, 2014

When the Roberts’ Supreme Court made its June 2012 decision on ObamaCare it rejected the Administration’s argument that forcing people to buy healthcare was constitutional under the Commerce Clause of the Constitution.  In recent years courts have twisted the original intent of the framers of the Constitution.  When written, the Commerce Clause was intended to give the federal government the authority to regulate the transportation of goods from one state to another.  It was not meant to cover goods once they reached their destination.  So, a truck full of poultry traveling from upstate New York to New Jersey could be regulated by the federal government but once the poultry was unloaded, the federal authority ended and the authority to regulate switched to the laws of the individual state (e.g., in this example, New Jersey). 

In the 2012 Obamacare decision, however, the Roberts’ court also found that the Congress/federal government – under its taxing authority – has the power to levy a tax (or penalty) against those who choose not to purchase health insurance. So the result was the same but the authority used was different and even though the Administration claimed it was not a tax, in the end the Court decided otherwise.

In the Court’s more recent Hobby Lobby decision (June 2014) it based its decision on the Religious Freedom Restoration Act of 1993, which was introduced by the late Sen. Kennedy (D-MA.), by then-Congressman  Schumer (D-NY) in the House, and supported  by Senate Democrats many of whom are still serving today. It was then signed into law by Democrat President Bill Clinton.  The Roberts’ court found that this statute “trumps” a regulation issued by an executive branch agency.  The Court’s finding was not about contraception and it’s not a ‘war on women’ as many in the media, the administration and Democrats are saying. What these people are saying makes a good sound bite for the midterm elections but it is patently untrue!

All the Court was saying in was that for closely held companies if a government action imposes a substantial burden on religious exercise, it must – under the 1993 Act -- serve a compelling government interest and it  must be done by the least restrictive means possible.  The Court found that there are other ways in which the government could equally ensure every woman has cost-free access to the contraceptives at issue here and, indeed, to all FDA-approved contraceptives.

So when a regulation issued by a department/agency conflicts with a law passed by Congress and signed by the President the only right course of action is to side with the law.  In the Hobby Lobby case that is exactly what the Supreme Court did.

But stay tuned, there are two more Obamacare cases in which federal courts have conflicting decisions.  One of them may be heading for the Roberts’ Court for a final decision.  These cases question whether the IRS can offer health insurance subsidies to people who are using the “federal” exchanges.  The statute passed by Congress was purposely crafted in a manner to encourage states to form their own exchanges using the “carrot” that if they did so, insurance premiums would be subsidized by the Federal government.  But with only sixteen sates establishing their own exchanges, this tactic has backfired. The law clearly states that in order to qualify for subsidies people must use  “state exchanges.”  If the Court decides to stick with the letter of the law then the funding for ObamaCare will quickly start unraveling and that could doom the law’s future.

Mark, Bill and John