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."
“The people of the states have voluntary given up their sovereignty.”
I thought that got settled in 1865.
Or did it?
There’s only one way we’ll find the answer to that question.
Same way as in 1861....
Toss in Income Taxes and the stage was set for a federal power grab.
That and the separation of church and state decision (1948). Once the court started reordering society, they just couldn't stop themselves. Soon to follow: compulsory busing, distribution of birth control to the unmarried, legal abortion, etc etc.
I will never forget how Roberts faced Obama at the swearing-in and flubbed the wording. Guilty conscience?
What exactly do you mean that 38 states can throw out Congress, President, and Supreme Court? I know that 3/4 of the states, or 38 states, can ratify constitutional amendments, or call a constitutional convention. Is that what you have in mind, either amendments limiting their power, or a new constitution?
Is John Roberts taking the position that it’s too late to stop ObamaCare because we’ve sold out so long it’s precedent?
Oh God, please NOT that... I don’t want to be forced to buy a Volt ... I don’t want to be forced to buy ‘racial sensitivity’ classes....
Those on the FR who brag about how they will never vote for Mitt Romney and would rather have Obama need to think long and hard about the next two appointments to the Supreme Court. If Obama makes those appointments it is game over for the Republic.
What makes you think Romney’s appoinments will be any better, certainly in light of his performance in Massachusetts?
Hope Roberts seizes on this "torpedo" and turns it right back at those who argue "everyone" needs to get on board the "Good Ship Obama Care!"
And may all those who thought it was such a "BFD" to launch it be the ones who go down with it. Better they than the Constitution, which the Left has been so busy chipping away at that they--in their overweening pride and arrogance--think they have reduced from a "mighty berg" into a "mere cube"!
What makes you think Romneys appoinments will be any better, certainly in light of his performance in Massachusetts?
A very good question. We don’t know the answer except that they can’t be any worse.
The age of the ugly appointees to the Soopreme Court is upon us.
With aprioris like these, Kagan is definitely out of touch:
1. there is no boatload of money when you starve people from business
2. How does she know they are poor people?
3. Hers is not a constitutional argument but a lawmaking budgetary worry that should be reserved for Congress to decide. Because money or no money in COngress, the issue is whether this is COnstitutional, and not just "fair".
Time for a u-turn!
Kagan has the mental age of a 5 year old.
Instead of studying law and the constitution, they were taught in “higher education” on how to make nice little “Dear Santa” letters while sh!ting on his elves.
Absolute power as per the Constitution is held by 3/4 of states.
Everything can be changed if they have agreement, in spite of whatever Congress, POTUS or SCOTUS says.
Indeed it is true as spoken here also:
“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.”
Although Our states have had little choice as The Federal tyrants have taken our money anyway. The only options was to follow their edicts or have them give our money to our competitors. This is really not unlike that of blackmail on the part of the Federal Government.