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."
I couldn’t agree more, but it seems the Federal Government has decided that it alone defines what powers it has, and thus by exclusion what rights we retain under the Federal Constitution.
“The chain” that our founders so elegantly described as the function of the Federal Constitution is not attached to anything but the Government it was intended to restrain and so the Federal Government is limited by nothing but their own will.
They carry their chain where ever they will only to uses it as a lash against we the people & our states.
It seems some what obvious to me that we must find away to overthrow this lawless government.
glad to see some people know the law
“What makes you think Romneys appoinments will be any better, certainly in light of his performance in Massachusetts?”
My only reason for believing Romneys appointment’s will be better is that you could hardly get worse than Obama. That for me is enough.
In the end it is not the Federal employees in black-robes that must save us from this tyranny, it is us in our States who must find a means of effective resistance from the ground up. It is not the natural inclination of men particular that subset of men interested in becoming politicians to give up power. It will therefore be unlikely that many of them may be preswated to seriously aid in the rebalancing of power away from them, and even if they did. The mechanics by which they did would just as quickly find itself in uses in reverse.
No my friends, this war cannot be won in Washington D.C. Romney, newt, Obama, it really makes very little difference in the long run. Our real battle is in our own States. We must secure greater control of our State & local Goverments.
We must insure that our population is educated as to the dangers of centerlized government, and we must begin organizing our States to help us resist Washington’s intrusions practically. The security of our liberty cannot be placed in 9 federal employees wearing black robes, but rather must rest in our self-interested ability to secure it.
He who has the investment in liberty must be the one with the power to defend 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.
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?
Therein lies the underlying problem. The way the law is written, if the individual mandate fails, people won't be buying insurance, they'll be buying healthcare. The whole concept of "insurance" will have been destroyed -- by an act of Congress.
Buying insurance means sharing the risk of a certain expense with others. Insurance is, literally, a hedge against future costs.
Obamacare, however, converts insurance directly into a healthcare provider. People aren't required to buy it until they need it!. That's not insurance -- the whole principle of "insurance" has been averted.
Under the circumstances, insurance companies would be forced to set their premiums at some number in excess of actual healthcare outlays. Which would:
1. Make the premiums exceedingly expensive -- more expensive than the actual cost of the healthcare.
2. Meaning that, consequently, nobody could afford them.
3. Meaning that, the whole healthcare system breaks down.
4. Which is precisely what the federal government wants -- so that they can takeover and establish a single-payer system, themselves.
The Obamacare law -- with or without the individual mandate -- is totally unworkable. And absolutely insane.
“Leftist aka progressives think tax dollars are they governments. Not the taxpayer.Once the government takes your money, it’s theirs, not yours.”
This fact seems rather clear given the way they have come to label them tax dollars “revenue” lol.
The Federal government did not trade for theses dollars, they took them by force from people who objected to the governments activity’s and intrusions upon their lives.
There was no consenting “trade” involved at all!
I regret very much that Supreme Court Justice Clarence Thomas choose not to speak during theses hearings. I understand his point in the meaninglessness of speaking when ones opinion has already been formed. But the man is by far in my opinion the most honorable and intellectual honest of the 9 Federal Employees.
I very much value his opinions as being by far the most reasoned in law of the lot. For a man of few words Clarence Thomas is a man of great words.
Maybe it’s already explained down the thread (I’m sort of running in and out) but could you explain what you mean in simple language? Essentially, is what Roberts said good or bad?
Many of the checks and balances have been forgotten or totally ignored.
Congress was given the power to declare war. Not the president, some elected bureaucrat in the oval office, CONGRESS!
That way, if we went to war, it would not be some guys opinion that we should do it, it would be 50 COUNTRIES!!! declaring war on some other country.
Look at Article III. The trial of ALL CRIMES shall happen IN THE STATE where it was committed.
That gives THE STATES (the people) the right to decide if some Federal law was stupid as it could get. Low-flow toilets? Give me a break!
That’s why if you read through Supreme Court decisions (like the Brady decision) you will see guys like Clarence Thomas saying “There is no general Federal police power”.
A few understand. Not many. Most people just want to rally and convince the Federal government to pass laws for their own particular agenda. Save the snails, or whatever.
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.
She said she was a “wise Latina”. Where does she the think the federal government gets this money to hand out?
Thank you, I did read that but I was hoping he was saying it in a way meaning “that’s a bad thing and we should reverse it”.
Legalese immediately makes me discombobulated.
The States sold their sovereignty for “Federal Dollars”. The sheep sold their souls for the same “Federal Dollars”. Both sold their souls[The States figuratively, the sheep literally] to the Feds for money the Feds did not even own.