Obamacare, Chief Justice Roberts,
and Where Do We Go From Here?
With commentary by Dr. Michael Farris and the Honorable Bart Fleming
Go to "Where Do We Go From Here?"

Judge Roberts, Obamacare, and the Constitution by Dr. Michael Farris
[Biographical Information]

July 5, 2012
Having carefully reviewed Justice John Roberts' baffling opinion on Obamacare this past week, I can say without doubt that, contrary to the opinions held by many, he is not a genius and he distinctly did not follow a conservative path.

As I see it, the core issue surrounding the Supreme Court's decision upholding President Barack Obama's health care overhaul is this: Can Congress tax and spend for purposes that it cannot directly regulate?

In the first place, to construe the health care measure as a tax, Justice Roberts must have had to do mental gymnastics. For its part, Congress deliberately did not call it a tax but a penalty. In legal terms, lawsuits against taxes must wait until people actually have to pay the tax — a result of the Anti-Tax Injunction Act.
Roberts said it is not a tax for the purpose of the Anti-Injunction Act, and yet it is a tax for constitutional purposes even though Congress said it was not a tax.

Roberts' cryptic "logic" on this point reminds me of the young man who murdered his parents and then argued that he was entitled to mercy because he was an orphan.

There are a number of cases, matters of legislative precedence, on which Roberts relies to justify the view that Congress can tax for purposes that it cannot regulate. He is clearly stretching in some of those cases, though in others he uses them more appropriately.

All of which leads us to the ultimate question: Should Justice Roberts be following precedent or the actual text of the Constitution?

Joseph Story—who Roberts cites in his opinion—wrote the leading early treatise on the meaning of the Constitution. Story said that "Congress is not empowered to tax for those purposes which are within the exclusive province of the states."
Roberts made it clear that health insurance questions are exclusively within the power of the states.

Story would agree with that much but would then add, if you can't legislate for that purpose, neither can you tax for it.
Story's view was grounded in a detailed recitation of the record from the Constitutional Convention. Story got the original meaning of the Constitution right. Roberts did not.

At best, in his decision Roberts was a creative and faithful follower of Supreme Court precedent. In light of the original meaning of the Constitution, however, most of that precedent is wrong.

Roberts faced a divide in the road: "Will I take this Court back in the direction of original meaning or will I continue the path of ever-expanding federal power?" Precedent supported the path he took. The real law (that is, the Constitution as it was written) clearly stands to the contrary.

He took an oath—not to Supreme Court precedent—but to follow the Constitution itself. I think he should have been loyal to his oath.

The amount of harm done by this decision cannot be calculated. It means that Congress can regulate every aspect of our lives so long as there is a tax involved. Congress can ban spanking by enacting a $1,000 tax on those who do. Congress can ban homeschooling in a similar fashion.

Any constitutional theory that leaves Congress with unlimited power is simply wrong. Justice Roberts should have known better.

Why Obamacare Must be Repealed
by The Honorable Bart Fleming
[Biographical Information]

July 11, 2012
It isn’t very often that we can think in terms of being able to repeal an entitlement once enacted.  But there is rare precedent for Congress doing that very thing. The Medicare Catastrophic Coverage Act , passed in 1988, was repealed a year later after angry seniors made their displeasure with the Congress known.

Now we have a law far more odious in its cost and ill effects on the health care system.  The only means of getting rid of Obama Care is defeating the President and winning a majority in the Senate and House this November. Obama Care, with its new taxes, intrusion into the affairs of patients and physicians, the inevitable rationing of care, and the macabre prospect of government panels deciding who gets (and doesn’t get) what treatment at what stage in life is simply bad policy. However, it is not these consequences that should cause the greatest concern for freedom loving Americans.

From the Declaration of Independence in 1776, through the Revolutionary War, to the ratification of the Constitution in 1789, the great purpose was the creation of a government that would “secure the blessings of Liberty”. That reference is to individual liberty, with the right to life and the pursuit of happiness for every citizen. So antithetical is the law to the arguments made by Hamilton, Madison and Jay in the Federalist Papers in support of ratification, that the law’s constitutionality should have been overturned on contextual grounds alone.  Is there any doubt that the mandate intrudes upon individual liberty, regardless of which clause of the Constitution is applied? It is unimaginable that the government is able to force the purchase of a commercial product through the coercive power of law. Obviously, I’m not a lawyer.

Consider this from the opening paragraph of Federalist Paper number 1. “It … it seems to have been reserved to the people of this country … to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

Remember Speaker Nancy Pelosi’s “We have to pass it to find out what’s in it.” So much for establishing good government [policy] from reflection and choice. Political opportunism took advantage of the accident of the election of this President and through the force of law to dictate commercial behavior of individuals. It is a law that portends to change permanently the social contract that has undergirded America for nearly 240 years.

It is not only because Obama Care is the introduction of socialized medicine. It is not only because it brings with it the largest tax increase in American history.  It is not only because it will cost more than a trillion dollars over the next decade. It is not only because of these and other ill effects that we must repeal Obama Care.

Perhaps more devastating than the effects of all of these together is that once the federal bureaucracy begins to crank out the implementing regulations, it will eventually usher in government control over nearly every aspect of our lives. It threatens to eliminate the great experiment in individual liberty. To ensure that doesn’t become our future, we must with reflection and wise choosing elect a President and members of Congress that will, as the framers wrote in the Preamble of the Constitution, “secure the Blessings of Liberty to ourselves and our Posterity”, They can begin by repealing Obama Care.

Now that Obamacare has been upheld what should be the strategy?
By Bill Sargent

The first thing to do in January is to repeal Obamacare! But what if Mitt Romney is not elected president? If this happens and the House and the Senate pass repeal legislation, Obama will veto the bill and there will not be enough votes to override the veto. So, what do we do then?

The Strategy: All funding measures start in the House of Representatives, and the Congress has the power of the purse. So the fallback position is to defund all appropriations for Obamacare, including all funding for the IRS to enforce it. Defunding language would need to be added to the Health and Human Services and the Treasury Department appropriations bills, similar to the way the Hyde Amendment was used to exclude all funding for abortion services. The President cannot veto something that is not there unless, of course, he wants to veto the funding bill for his agencies. If he does veto these appropriations bills, the Congress can keep these agencies alive by passing a Continuing Resolution (CR) which must include the same exclusionary language as in the original appropriations bills. If the President wants to fund his agencies, he will need to agree to the defunding of Obamacare.

The fly in the ointment is whether we have enough Members of Congress who will stand up, hold the line, and stick to their guns! One of the reasons I decided to run for Congress back in 2912 is because we need members who will hold the line. I was not successful. We must hold our elected officials' feet to the fire and hold them accountable!