Well, well . . . one unelected governmental officeholder with lifelong tenure, Chief Justice John Roberts, Jr., ironically a known epileptic, became the single, deciding factor in determining the future of all medical services for the entire USA.(1) What power! What would James Madison say?
It might be noted that the context in which Mr. Roberts made his decision not only is his own chronic illness but a Court in which not one of the “Supremes” is a WASP-male or a WASP-female. As Mr. Roberts reasoning represented a gross distortion of the language of the legislation, the composition of the Court represents a gross distortion of American demographics. Mightn’t even Abraham Lincoln be aghast?
To what extent did Mr. Roberts having served as counsel to the insurance-industry influence his decision, especially his loss in 2002 before what is now his Supreme Court (Rush Prudential HMO, Inc. v Moran)? The answer is unclear, given the disparate consequences for different companies.(2)
Twisting definitions the way only a lawyer can do, Mr. Roberts pronounced legislation that he himself, otherwise, would have considered unconstitutional . . . constitutional. Talk about miracles! Such a feat of legalistic resurrection might amaze even Moses, Jesus, and Mohammed.
The four dissenting Justices noted that Mr. Roberts re-categorized, as a tax, the “penalty” attached to the “individual mandate”. The penalty was categorized numerous times in the legislation as such and not as a tax even though it will be administered via the Internal Revenue Service. Moreover, Mr. Obama and his Democratic supporters repeatedly denied that it is a tax,(3) and, although some of his supporters now might deny his denial, others within the White House continue to affirm it.(4) In the words of the radio-character, Chester A. Riley, “What a revoltin’ development this is!”
So, what’s America to do? Given her history, probably nothing more than passive acceptance. Isn’t it all over but the shouting?
Will Mr. Romney continue to campaign loudly for repeal of ObamaCare despite its model having been RomneyCare in Massachusetts? Such linguistic gymnastic is well within the abilities of Mr. Romney . . . after all, he is a lawyer himself.
Two lawyers campaigning for the presidency. What a sight to behold!
Admittedly, at this point in the campaigning, the consequence of Mr. Romney’s emphasizing his opposition to Obamacare might be less voters’ support not more. Whatever he chooses, in November, should the House remain Republican and, by some chance, Mr. Romney win the White House,(5) he still will be unable to repeal ObamaCare in its entirety unless the Republicans also capture a minimum of sixty seats in the Senate, unlikely, then band together into a united whole, even more unlikely given their past record of fecklessness . . . think Olympia Snowe from Maine or Arlen Specter from Pennsylvania.
Okay, other than the Republicans’ capturing the White House and both chambers of Congress, is there anything else that America can do? Yes, but she won’t . . . or might she?
As Alexis de Tocqueville noted in 1831, the real power in America, albeit currently remaining buried under the big foot of the federal government, lies with the individual States.(6) State-based governments simply could refuse to establish the “exchanges” demanded by ObamaCare. Will any? Governors Perry of Texas and Scott of Florida say, “Yes.” Talk is cheap, however . . . money, expensive. Time and politics will tell.
Wait! Even if a State so refuses, pursuant to the Act, won’t the federal government do so in its stead? Not necessarily . . . not if the U.S. House of Representatives, likely to be Republican-controlled, refuses to appropriate the necessary funds.
The U.S. Constitution is clear. Federal appropriations originate in the House not the Senate. “All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”(7) No money . . . no ObamaCare.
James Madison wrote in The Federalist No. 58, “The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of the government. They, in a word, hold the purse – - . . . . This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
After all, if Mr. Obama can refuse to enforce the law in the form of the Defense of Marriage Act because it offends his personal or political sensibilities, why can’t the House of Representatives refuse to fund a law that a majority of its members deem unconstitutional, Mr. Roberts’s opinion notwithstanding?
What would be the consequence of such behavior? A constitutional crisis? Maybe. If so, perhaps a constitutional crisis is what America needs to save the Constitution and herself (www.inescapableconsequences.com).
1. Epilepsy: a recurrent, paroxysmal disorder of cerebral function marked by sudden, brief attacks of altered consciousness or abnormal motor signs or sensory symptoms. Of note, patients with epilepsy are at risk of developing psychiatric problems including anxiety, depression, and psychosis. Whether patients develop an “inter-ictal” personality remains a source of medical controversy.
Whatever the case, Mr. Roberts’s condition has raised criticism about his fitness to serve on the U.S. Supreme Court or, perhaps, any court. Some might claim that his medical condition never having become a source of national or congressional debate prior to his confirmation would seem to reflect the power of political correctness or what, alternatively, would be called Radical Maternalism.
2. Schoenholtz, JC: The Managed Healthcare Industry: A Market Failure (2nd Ed.). North Charleston, SC: CreateSpace (2011).
3. “ObamaCare and the Power to Tax”. The Wall Street Journal, 29 June 2012, page A13.
4. “A Vast New Taxing Power”. The Wall Street Journal, 02 July 2012, page A10.
5. In this election, some might characterize Mr. Romney as a lightweight in a heavyweights’ bout. One example has been his refusal to address candidly and completely two issues of substantive importance . . . namely, 1) his promoting of RomneyCare, about which Rick Santorum beat him to a pulp during the primaries and 2) his wife’s medical condition (multiple sclerosis) and her ability to meet the challenges of becoming First Lady,(A) about which, unlike his wife, he himself essentially has refused to comment.(B) His reluctance to meet these issues head-on projects a personal image lacking strength, lacking courage, and lacking conviction.
A. Multiple Sclerosis: a chronic, progressive, auto-immune, inflammatory condition of the central nervous system, marked by intermittent damage to the myelin sheath that covers all axons of nerve-cells. One of the hallmarks of the disease is chronic fatigue (90% of patients) in addition to often severe motor and sensory dysfunctions, including loss of control of bladder (90% of patients) and bowel (15% pf patients). Fifty percent of patients suffer from depression while 20% exhibit “la belle indifference”, an unrealistic degree of complacency about gross symptoms.
B. Burton, TM: “Ann Romney Talks of Her Struggle With MS”. The Wall Street Journal, 02 July 2012, page A4.
6. de Tocqueville, A: Democracy in America. Chicago, The University of Chicago Press (2000).
7. U.S. Constitution, Article 1, Section 7.