Skip to comments.Chief Justice Says States Have Compromised Their Sovereignty
Posted on 03/30/2012 6:29:41 AM PDT by IbJensen
Chief Justice John Roberts said Wednesday what has long been known but seldom spoken. During the third and final day of Supreme Court hearings on whether the Patient Protection and Affordable Care Act of 2010 is unconstitutional, Roberts said states have been compromising their sovereignty for decades through increased reliance on the federal government for money and accompanying directions on the governance of state affairs.
"It seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done," the chief justice said during Wednesday's nearly three hours of hearings on the controversial health insurance law.
The final day's arguments had to do with whether the law could stand if the justices find the mandate for uncovered individuals to purchase health insurance is unconstitutional something the court's conservative majority appears ready to do. Another feature of the law called into question by lawyers opposing the act is the expansion of Medicaid, the federal-state program that provides health care for low-income families. Under the Affordable Care Act, Medicaid is expanded to include a larger number of parents, as well as low-income adults with no dependent children. Half of the 32 million who would get new health insurance coverage under the law would receive it through Medicaid. Starting in 2014, the federal government would pay 100 percent of the cost of newly eligible participants. The federal share would be scaled back to 90 percent by 2020. States would still have the right to opt out of the program, but would stand to lose all of the federal funding, including the money they are already receiving. Currently all 50 state participate in the program.
"Obamacare is going to expand Medicaid, and the taxpayers absolutely can't afford it," Dr. Alieta Eck said at a rally against the law outside the Supreme Court. Thomas Miller, a resident fellow at the conservative American Enterprise Institute, agreed, telling the Public broadcasting Service: "The states say, we can't even afford the current Medicaid program, and this would in effect give them no flexibility to make any adjustments that are reasonable adjustments, and say maybe can cover some more people in a certain way, but not under the rigid federal rules."
Dr. L. Toni Lewis, who is in favor of the Affordable Care Act, voiced her support for the expansion of Medicaid. "As a doctor, I tell you that Medicaid works for seniors, it works for kids, it works for people with disabilities, and it works for families," she said.
Paul Clement, a former U.S. Solicitor General and current Georgetown Law School professor, argued for the 26 states opposing the law that requiring the states to expand the Medicaid program or lose the federal funding would have a "coercive" effect, a claim that drew a sharp rebuttal from Justice Elena Kagan "It's just a boatload of federal money for you to take and spend on poor people's health care," she said. "It doesn't sound coercive to me, I have to tell you." Roberts observed that the states have been accepting federal money and conditions attached to it, "since the New Deal" of the 1930s.
But the real sticking point in Wednesday's debate was the purchasing mandate and whether the rest of the law could stand without it. The law prohibits insurance companies from turning down applicants or charging higher rates for people with pre-existing conditions, thereby adding costs intended to be offset by bringing in more young and healthy clients through the mandate, with its penalty for not purchasing insurance.
Deputy Solicitor General Edwin Kneedler argued for upholding the validity of the rest of the law even if the controversial mandate is ruled unconstitutional. But if the individual mandate were ruled out, asked Justice Anthony Kennedy, what would happen to the insurance industry, which would now be in the hole for $350 billion over 10 years?
"We don't think it's in the court's place to look at the budgetary implications," Kneedler replied. But the justices grappled with the dilemma of taking what Justice Ruth Bader Ginsburg described as either a "wrecking ball" or "salvage" approach to the law if the mandate is ruled out. They differed over which course would result in the greater intrusion of judicial power into the legislative process. One question yet to be decided was whether letting stand the costly requirements imposed on the insurance companies without the mandate to pay for them would be consistent with the intent of Congress. Kennedy, concerned about what that might do to the insurance industry, suggested that letting the law stand absent the mandate would be a greater imposition of judicial authority than striking the law down in its entirety.
"If we lack the competence to even assess whether there's a risk, then isn't this an awesome exercise of judicial power ... to say we're doing something and we're not telling you what the consequences might be?" he asked Kneedler.
" No, I don't think so," the Justice Department attorney replied, " because when you're talking about monetary consequences, you're looking through the act, you're looking behind the act, rather than the court's function is to look at the text and structure of the (act) and what the substantive provisions of the act themselves mean." Justice Ginsburg contended that "the salvage job" of upholding those portions of the law that pass constitutional muster would be the "more conservative approach." Justice Stephen Breyer appeared at various points in the discussion to be on either side of the issue.
"I would stay out of politics," he said, arguing against a judicial editing of the law. "That's for Congress, not us." Yet at another point he suggested having the opposing lawyers go over the law to find points of agreement and report back to the court, something, he acknowledged might be a "pipe dream." Justice Antonin Scalia, favored ruling the entire law constitutionally invalid rather than have the justices wade through the act's thousands of pages, picking and choosing which provisions pass constitutional muster.
"You really want us to go through these 2,700 pages?" Scalia said. "Is this not totally unrealistic? That we're going to go through this enormous bill item by item and decide each one?" A 1981 Reagan appointee, Scalia was not bashful about addressing the political aspects of the controversy before the court. He asked the Clement if there was "any chance that all 26 states opposing (the law) have Republican governors, and all of the states supporting it have Democratic governors?"
"There's a correlation, Justice Scalia," Clement acknowledged.
Opposition, however, appears to be driven more by ideological than by partisan considerations, as attorneys for the states and the National Federation of Independent Businesses argued that the law goes beyond the powers delegated to Congress by the constitution, particularly the provision authorizing Congress to regulate commerce among the states. Under the Affordable Care Act, regulation of commerce includes a requirement that all chain restaurants list the calorie count of each item on the menu.
Other lesser-known provisions, said Art Thompson, CEO of the John Birch Society, include home visitations by government agents, the possibility of forced immunizations and "Community Transformation Grants." The law in total, Thomson said, "will intrude on every aspect of life in America, from cradle to grave."
It’s the truth, and the bottom line truth. And it’s the reasons for all the checks and balances that the founders wrote into the Constitution.
But the money-changers don’t like it...
They ex parte met with, and bowed before,
an undocumented, if not foreign, litigant
on a case before them, HERE:
this is what I’ve been saying we need do take back our towns counties and states and get off the teat then the gov will shrink.
Speaking of extortion in regards to taking federal money, Mayor Janice Daniels of Troy Michigan is facing recall for refusing to accept federal money.
She’s true tea party victory.
Maybe it's me and I'm not smart enough to understand enlightened jurisprudence, but Kagen sounds like a dumbass here...
And might I add it’s the reason the United States is now what, 15T?? in debt.
Because it’s not real. It’s insubstantial. It’s phantom, hypothetical.
It's my opinion that the conservative justices know they have Kennedy's vote....and choose not to challenge Ginsburg on ethical grounds at this time. Why argue with success?
Approaching 80, Bader-Meinhof is the oldest Justice on the Court. She's undergone surgery for pancreatic surgery and probably will resign after the November election, so why give her the personal pleasure of recusal publicity if they don't have to. She's best ignored as the inept nebbish she is.
(Gee, I hope I'm correct on my assessment that the votes are in the bag, shudder, shudder. But I'd lay book that they are).
I would imagine the states have not had much choice along the way. It seems the Federal monster has gradually taken the power away, with the help of the judiciary at all levels. Yes, some blame goes to the states, but the power was largely taken by force.
Once the states take money from the federal government, they have to dance to the fed’s tune. This is how the federal government has got its talons into everything from education, to land management, to industry regulation, to, well, everything.
Public schools used to be exclusively run by the individual states, districts, and counties - now an ever-growing part of what happens in public schools is driven by the agenda the federal government has on tap - and it’s only going to get worse.
Why should they, when you have at least 1 SC Justice on the record telling a foreign country to not use our Constitution as a model for theirs, because it is flawed?
He's blaming the States for what Congress has done, and the USSC was complicit in.
“increased reliance on the federal government for money”
If this federal money as they call it. Is collected in their state. Do not they have a right to some of it? Leftist aka progressives think tax dollars are they governments. Not the taxpayer.
this is not a good line of questioning for tossing obamacare.
If you accept federal money once you give up EVERYTHING?
I think the Civil War had a little something to do with states losing their sovereignty.
There’s a big problem in that the states did give up a lot of their power via both the 17th Amendment and the craven greed of accepting federal funds (with all of the attached strings).
This is utterly irrelevant with regard to the clearly unconstitutional insurance mandate, in which the federal government seeks to compel private citizens to purchase a product from a private party. The federal government does not have that power ANYWHERE in the Constitution, and taking off on a tangent about the states is destructive toward the end of reigning in the feds. Roberts should concentrate on THAT.
Further, once the mandate is tossed out for being well beyond the power of the feds, the rest of the law MUST be tossed out - because there was no severability clause. Even forgetting the fact that Congress knows damned well how to insert a severability clause into any law (and, thus, by not putting it there that evidences its intention), you have the FACT that the House version of this law included such a clause - but the Senate version and, more importantly, the version approved by Congress and signed by Obomination lacked such a clause. That is CLEAR evidence to me that Congress clearly intended to have the entire law flushed down the toilet if so much as a single clause of the law was later ruled to be unconstitutional.
Toss the mandate and toss the law, Roberts. Do your damned job.
As for the states, if they had any brains they’d start a petition for a Constitutional Convention for the purpose of repealing the 17th Amendment. Once 35 or 36 states sign on, Congress will act to pass such an amendment and then 38 states can ratify it, obviating the need for a CC and, more importantly, repealing that piece of statist trash that is the 17th Amendment.
It is long past time for the states and the people to reign in the power of the dictatorial feds.
“If you accept federal money once you give up EVERYTHING?”
No you do not. Only leftist aka progressive think that way. They feel they can threaten states into compliance with their agenda by withholding tax dollars collected in the state. Ocare is wrong because it forces people to purchase a product. Simply to lower the cost of the product for others. And that never works.
pgyanke#8: The States became wards of the Federal government in the 17th Amendment. You effectively went to a House of Representatives and a House of Super Representatives. The voice of the States was lost in the Senate.
Paine in the Neck #9: This problem started with the institution of the income tax and was made infinitely worse with the introduction of direct withholding. Once the Feds could rab all the money first evryone was put in the position of being supplicants on their knees with begging bowls.
Only above items which were done via USC are binding, since the only way to change the supreme law is via amendment; those amendments needs be removed. The states acceptance of bribery and coersive moneys from USG is not binding, but a side effect of those broken amendments. The Reserve is not binding and anything buy coin/species is un-USC, therefore it required an amendment.
USG is and has been a criminal organization for some time.
Crime: 1. An act committed or omitted in violation of a law forbidding or commanding it ... 2. Unlawful activity
...in relation to the Reserves _money_ VS USC. USCongress in regards to law requiring a budget. Thousands if not millions of further acts against the law on an ongoing and escalating manner.