Two big decisions in Washington last week

The Supreme Court’s Ruling on “Obamacare”

The U.S. Supreme Court has upheld the constitutionality of the Affordable Care Act, a.k.a. “Obamacare,” and many people have asked me what I think about the Court’s ruling.  In short, I’m stunned, and as a combined health care professional, legal expert, and MBA, I’m deeply disappointed.  Our government will never allocate health care to Americans as effectively and efficiently as the free market could.  Our problem is not that the market for health care is too free.  Our problem is that the market for health care is not free enough — and it’s about to get a lot less free.

Chief Justice John Roberts was the swing vote comprising the 5-4 majority that upheld the constitutionality of the Affordable Care Act’s linchpin, the so-called “individual mandate,” whereby every adult American is required to secure health coverage from one source or another or face a significant monetary penalty.  That’s surprising because Roberts has generally been what lawyers and constitutional scholars call a “strict constructionist,” meaning that he’s generally been loath to “read things in” to the Constitution that aren’t clearly spelled out within the “four corners” of that document, in which our nation’s founders laid out their purposes for establishing our federal government.  Not this time though — this time, Roberts, also the author of the Court’s written opinion, used some semantic gyrations to “stretch” the language of the Constitution far enough to cover Obamacare.

In the utterly perplexing opinion, Roberts first acknowledges that the federal government’s constitutional power to regulate commerce between the various states (the “commerce clause”) is not broad enough to permit the government to require individual Americans to secure health coverage, but then shortly thereafter, he concludes that the federal government’s constitutional power to levy taxes on the American people is broad enough to permit the government to tax individual Americans who choose not to secure health coverage.  Thus, as you may have heard reported, the constitutionality of Obamacare was upheld by characterizing the “individual mandate” as a tax — a characterization that even President Obama has consistently rejected.

If you’re confused, join the club, but I’ll give you an analogy that might help.  What Roberts (and the other justices in the majority) concluded would be much like concluding the following:  “The federal government does not have the power to require every adult American to display a Christmas tree during the month of December (obviously, because the First Amendment guarantees freedom of religion), but the government can nevertheless impose a significant yearly tax on any American who chooses not to display a Christmas tree.”  Clearly, the imposition of such a tax is, in effect, requiring the very behavior which the government supposedly is not permitted to require, and so it is with health care.

The Court’s decision has been made, though, and its implications are daunting.  Generally, it has opened the door for the government to impose otherwise-unconstitutional behavioral requirements on individual Americans by imposing onerous taxes on those who choose not to comply.  Specifically, in addition to paving the way for the dismantling of the world’s best health care system (yes, it’s imperfect, and yes, it could be improved — by applying free-market principles — but it’s still currently the world’s best), this ruling has also created conditions in which I think our economy, particularly unemployment, may well remain stagnant for months, if not years.  Why?  Because despite the reduction in uncertainty about what it’s going to cost to employ somebody in the future (which I think would’ve been a huge economic stimulus if the Court’s decision had gone the other way), millions of American employers have just been handed a new and powerful incentive to employ as few Americans as possible.

With the Court’s decision made, if you don’t want the federal government to begin allocating health care in America in 2014, there remains just one way to avoid it, and that’s to elect a new president and majorities in the U.S. House and Senate who are determined to repeal Obamacare.  That’s a tall order, but it’s achievable, in part because the political proponents of the Affordable Care Act will now have to defend one of the largest tax increases in our nation’s history, which will hit middle-income Americans harder than wealthy and poor Americans.  We Americans have the opportunity to stop the socialization of our health care system at the ballot box this November, and I pray that we seize it.  If not, I truly believe that history will look back on these years as the period in which America lost its world leadership position in health care.

The House Votes to Hold the Attorney General in Contempt of Congress

The U.S. House of Representatives has voted to hold U.S. Attorney General Eric Holder in both criminal and civil contempt of Congress for refusing to turn over documents sought by the congressional oversight committee investigating “Operation Fast and Furious” (in which guns intentionally trafficked into Mexico by U.S. federal agents were used in the murder of another U.S. federal agent).  I support both of these contempt votes because I see no reason for Holder’s continued concealment of the subpoenaed documents other than an attempt to prevent politically-damaging information from being made public until after this fall’s presidential election.  If that’s his reason for refusing to comply with a congressional subpoena, it’s an affront to all law-abiding Americans and particularly to the family of the murdered agent.

So, what happens now?  Well, the criminal contempt citation will effectively go nowhere.  Why?  Because a U.S. attorney who works in the very Department of Justice headed by Holder would have to prosecute his or her boss.  In fact, the Department of Justice has already issued a statement advising Congress that it does not see enough evidence of a crime to warrant prosecuting Holder.  The civil contempt citation, however, is another matter altogether.

The civil contempt citation will be the basis of a lawsuit filed by Congress in federal court in Washington, D.C. against Holder, seeking a court order for Holder to produce the documents in question.  The judge appointed to oversee that lawsuit will then order Holder to produce the documents for his or her (the judge’s) review and to provide a legal justification for refusing to give them to Congress in compliance with a congressional subpoena.

At that point, Holder is likely to argue, among other things, that at least some of the documents are covered by “executive privilege,” which allows communications involving the president and/or members of the White House staff to be kept private if their release would compromise either national security or the president’s ability to get candid advice from the White House staff.  I see no legal basis for applying executive privilege in this case as it involves the criminal investigation of gun trafficking (i.e. not terrorism) and as the involvement of the President or White House staff has been denied.

Bottom line:  The congressional oversight committee will probably get the documents that it has been seeking, and the documents will probably contain evidence that top officials in the Department of Justice, perhaps including Holder, knew more than they’ve claimed about “Operation Fast and Furious” back at a time when they could’ve and should’ve put a stop to it (i.e. before an American agent got killed).  Unfortunately however, Holder’s apparent stonewalling tactics are likely to succeed in delaying such revelations, both to the American people and to the family of the murdered agent, until well after the November 2012 election.


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