While the fiscal situation in
and Spain continues to
deteriorate, despite the measures taken by the European Monetary Union to
resolve the crisis, Cyprus
has asked the European Monetary Union for a bailout, as it holds much Greek
debt in the form of bonds. The island
republic inhabited mostly by ethnic Greeks is the most immediate example of the
spread of contagion of fiscal crisis from Greece.
Saturday, July 28, 2012
Additional Thoughts on the United States Supreme Court Ruling on the Federalization of Health Insurance
I noted several positives in my last post for conservatism and federalism in the recent United States Supreme Court ruling on the federalization of health insurance, which I hope my readers found heartening.
Many fellow conservatives have expressed deep disappointment over the ruling because it upheld the individual mandate to purchase health insurance, which was the lynchpin of the legislation passed by the liberal Democratic Congressional majority and signed by President Barak Obama. The entire law could have been overturned had the mandate been ruled unconstitutional. I write this post to hearten further my fellow conservatives.
We conservatives ought not to act like liberals. Conservatives should avoid the practice of many liberals to make unnecessary ad hominem arguments against those with whom we disagree. We should not expect an outcome of a case to be based upon ideology or politics, like liberals do, but the Constitution or the law, as originally intended. We must also accept that the principle of judicial restraint requires deference to the powers of the Legislative Branch, which is representative of the People, even if the law were bad, unpopular, or were approved dishonestly, as long as it is constitutional.
In significant cases, I read the entire majority, concurring and dissenting opinions, particularly of the conservative Justices, including all of their footnotes – a practice I recommend. The scholarly opinions of Supreme Court Justices are generally based upon legislative history, precedent and reason. The Justices are influenced by ideology, but generally not by partisan politics.
Although I agree more with the conservative dissenters in this case, I believe Chief Justice John Roberts was reasonable in reaching his decision in favor of upholding the individual mandate. The conservative dissenters noted that this case was “difficult” because it was one of “first impressions” in a number of areas, meaning that there was little or no precedent. Thus, Roberts cannot be accused of overly adhering to precedent. Unlike liberals, the Chief Justice did not base his decision on his desire for a particular outcome. Indeed, he upheld the law on constitutional grounds even though he did not support it on its merits. In reaching his decision, Roberts neither changed the meaning of the words of the Constitution nor discovered new rights nor cited foreign law as an authority, as liberals do.
In fact, the Chief Justice deftly got liberals to agree with several conservative and federalist principles in gaining a number of important victories in this case. In some respects, Roberts was successful even without the conservative Justices, whose opinion, although called a “dissent” was actually only a dissent in part and a concurrence in part. Where they concurred, he and the conservatives thus gained a larger margin of victory than otherwise would have been expected. In other words, Roberts reached an outcome favored by the liberals, but in a conservative manner.
I should note an additional benefit of Roberts’ opinion: in going out of his way to defer to the Legislative Branch, Roberts now has a free hand to strike down Executive Branch mandates, for which no judicial deference is due, such as the Obama Administration’s mandate that employers provide health insurance for sterilization, contraception and abortifacients.
It can only be speculated that perhaps there were some intimidation of the Supreme Court by the media or Obama. Public confidence in the Court is a legitimate concern for a chief justice, although it must be balanced by judicial independence. Even though there was a history until recently of Republican-appointed Justices voting for liberal positions, Bush v. Gore subjected the Court to the unfair criticism of partisanship. The open disagreements between Obama and the Court exacerbated the perception. Henceforth, because of this case, whenever Roberts joins with his fellow conservatives on the Court, he can no longer be dismissed as lacking independence in terms of partisanship or ideology.
One area of particular concern raised by the conservative dissenters in this case is worth further examination. Because of Chief Justice Roberts’ necessary deference to the Legislative Branch, he argued in his opinion that the remedy to fix a law is required by precedent to be narrow in order to save as much of the law as possible. However, fixing the law is not the job of the Court. The conservatives observed that Roberts’ fixes seem to substitute his view for the Legislative Branch’s intent. For example, the right of the States to opt out of the Medicaid expansion was arguably not the legislative intent of Congress because the result could be a patchwork of vastly different health insurance coverage among the States instead of uniform coverage.
In appellate law, jurists must often balance competing principles. Sometimes, they err to one side or the other. Roberts may fairly be criticized in this case, but not for being unreasonable. Moreover, the Chief Justice deserves praise for his use of legal reasoning through which he gained some remarkable victories for conservatism and federalism.
Sunday, July 22, 2012
Conservative, Federalist Analysis of the Arizona Border Control and Federalization of Health Insurance Rulings
There were significant federalist implications of the United States Supreme Courts rulings on the
Arizona border control
law and the federalization of health insurance that I have posted on frequently. Although there were no sweeping victories for
federalism and conservatism, there were some major narrow victories.
Arizona border control case, the Court ruled
that States may enforce federal laws, even if the federal government declines
to enforce its own laws. In this case, Arizona was requiring
its law enforcement officers to inquire as to citizenship status of suspects it
had probable cause to stop and pass the information along to federal
authorities. The ruling meant that the Obama
Administration’s attempt to prevent Arizona
from even enforcing federal laws would have violated states’ rights.
Had Chief Justice John Roberts not sided with the liberals to form a 5-3 majority, the votes would have been split 4-4 because of the recusal of Justice Elena Kagan. A split decision would have left the
ruling stand, which was that Arizona’s
law was totally unconstitutional. Thus,
Roberts got the liberal Justices to go along with him in a narrow victory for
states’ rights, although the ruling restricted Arizona from exercising its sovereign right
over the entry of people onto its soil.
The liberals had argued that because of the Supremacy Clause of the U.S. Constitution, federal law would supersede state law because the Constitution granted the federal
Union the power to enact a uniform rule of
naturalization, “immigration” was strictly a federal power. However, as the conservative dissenters
pointed out in an opinion written by Justice Antonin Scalia, the right to
police a State’s borders to keep out those it does not want is an inherent
right of sovereignty. He noted the point
I mentioned in my post from April of this year, Chester Arthur, the Most
Underrated U.S. President, http://williamcinfici.blogspot.com/2012/04/chester-arthur-most-underrated-us.html,
that there were no federal immigration laws before the 1880s, meaning that the
issue was recognized as strictly a state one.
Indeed, naturalization, the
process of obtaining citizenship, which is understandably a federal matter, is
not the same thing as immigration,
let alone the broader matter of border control.
The Court gave deference to the Legislative Branch and to its precedents that federalize an issue if Congress enacts comprehensive legislation to address it. Although there are joint federal and state powers, the Court only permitted
to exercise power over the issue to the limited extent of enforcing federal
law, while rejecting the less controversial parts of the law that it ruled went
beyond the strict limit. Considering
that the Obama Administration and the Left did not even want to allow a State such
a limited power, the ruling was a landmark victory for states’ rights.
On the constitutional challenge of the federalization of health insurance brought by a majority of the States, among others, conservatives won greater victories, despite the major disappointment of the refusal of the Supreme Court to declare the federal mandate to purchase health insurance unconstitutional.
Seven of the Justices agreed that the federal government lacked the power to mandate the purchase of a good or service under the Commerce Clause and the Necessary and Proper Clause under the General Welfare Clause, both of which were cited by the Obama Administration, the liberal Democratic Congressional majority and others on the Left as the unquestionable source of its limitless power. Thus, the ruling is a landmark case that finally placed some significant limits to federal power under these provisions liberals have used to do whatever they want that is not expressly prohibited under the Constitution, its other provisions, such as the Tenth Amendment, notwithstanding.
The Obama Administration, after having denied that the mandate was a tax during the public debate over the bill, then argued in the alternative in federal court that the federal
Union had the power to issue such a mandate under its
taxing authority. A majority of five
Justices agreed. Congress is not
constitutionally obligated to tell the truth, but it is accountable to the
electorate for misleading the public, as it is for bad law. Although federal power now seems to be
unlimited to force individuals to do what liberals want through the taxing
power, their efforts will be exposed for what they are: a tax, which, as an
unpopular power requiring the consent through representation of those who are
taxed, would be difficult for the representatives of the people to impose.
As in the
Arizona border control case, Roberts, who
wrote the majority opinion, deferred to the Legislative Branch. The counterargument from the four
conservative Justices who dissented on the taxing power question was that by
inferring legislative intent even when it was not expressed at the time, he substituted
his judgment for that of the Legislative Branch. Indeed, the question of which taxing power
the federal government was exercising under the Constitution remains. Therefore, once the tax begins to be collected,
someone harmed by its collection could challenge its constitutionality. I should add that there is no criminal
penalty under this law for the failure to pay the tax. Congress may further limit the enforcement of
This ruling does not affect the litigation against the other mandates that have been or will be issued under the federalization of health insurance, such as the one requiring the free coverage for sterilization, contraception and abortifacients I have posted about previously.
The federal government’s attempt to coerce the States into expanding Medicaid under the plan to federalize health insurance was the second of the two challenges brought by the States. The Court ruling on this issue is another landmark victory for states’ rights.
The federal government may not coerce the States into doing what it wants by threatening to withhold all of its Medicaid funds instead of only the additional funds the state would have received had it agreed to implement the expansion. In fashioning a remedy, however, as the dissenters noted, some taxpayer money collected from the citizens of a state will be used to fund Medicaid expansion in other states. Nevertheless, this case represented the most significant limit ever to federal attempts to force the States to do its bidding. In deferring to the Legislative Branch and in keeping with the practice of not issuing rulings beyond the necessary scope of the issue, the remedy the Court fashioned was narrow: instead of striking down the expansion entirely, it ruled that the penalty for a State that opted out of the Medicaid expansion could only be the loss of the funds for expansion, not all its Medicaid funds. Many States are declining to expand their Medicaid programs because of the ruling.
Arizona border control and the
federalization of health insurance rulings acknowledged Court precedent in
expanding federal power, but finally placed some major limits to those powers
and acknowledged some states’ rights. The
Supreme Court did so without subjecting itself to a false charge of judicial
activism, but by restraining itself to narrow rulings and remedies to which
even the Left had difficulty in objecting to legally. The Legislative and Executive Branches will
henceforth have to exercise power more honestly and narrowly. Although conservatives were disappointed that
these rulings were not as great as hoped, they provide much support for federalism
Friday, July 6, 2012
The result of the Mexican presidential election is the return of power of the center-left Institutional Revolutionary Party (PRI), after a hiatus of twelve years, with the victory of Enrique Pena Nieto. The center-right, whose candidate came in third place, had ruled in the meantime, leading to increased prosperity, but without being able to end the drug gang wars near the border with the
United States. The main rival to Pena Nieto was a far-left
candidate sympathetic to Venezuelan Dictator Hugo Chavez.
The PRI had ruled
Mexico as a
notoriously-corrupt dictatorship for seventy years. Towards the end of its rule, while it clung
to power by election fraud, it had begun to reform democratically and
liberalize the economy, which it pledged during the campaign to continue. The PRI will have to be more successful than
its predecessor in defeating the vicious drug gangs.
Pennsylvania Governor Tom Corbett, a Republican, signed the Commonwealth’s budget for fiscal year 2012-2013, which the majority Republican General Assembly approved on time for the second year in a row – a rare feat in
Like Corbett’s first year budget, this year’s balances the budget by cutting spending – limiting it to less than the inflation rate, plus the rate of population growth – without raising taxes. Additional revenue from taxes allowed for less cuts in spending for education and other programs than originally proposed, and the inclusion of an emergency fund for distressed schools. The Governor won the inclusion of a tax credit for businesses’ scholarships for school choice, as well as tax credits to lure an ethane plant. The budget continues the phase-out of the onerous capital stock and franchise tax (a tax on assets, in addition to income). It also includes the block-granting of welfare programs to counties in order for them to prioritize funds more effectively.
Meanwhile, Corbett was also involved with a successful bipartisan state and federal effort to keep a major oil refinery in
open and even to expand it. The Corbett
Administration continues to crack down on welfare fraud. Since he signed his last budget, the Governor
also signed legislation to ban the dangerous drugs known as “bath salts” and
the voter identification law. See
Corbett Signs Voter ID Requirement into Law, from March of 2012: http://williamcinfici.blogspot.com/2012/03/corbett-signs-voter-id-requirement-into.html. He was also hailed for his handling of devastating
floods in Pennsylvania.
Governor Corbett has held off on implementing the establishment of exchanges under the federalization of health insurance scheme approved by the liberal Democratic Congress and United States President Barak Obama; the Governor and Legislature are considering opting out of the costly Medicaid expansion, now that the U.S. Supreme Court ruled the federal threat to withhold all of the Medicaid funds to a state that opts out, and not only the additional funds for the expansion, to be an unconstitutional violation of states’ rights. The
under then-Attorney General Corbett was a party to the partly-successful state
lawsuit led by Florida
challenging the constitutionality of the health insurance federalization.
Thursday, July 5, 2012
I hope all of my American readers had a happy Independence Day.
I have posted previously on the reasons why the September 11, 2001 Terrorist Attacks on the
should not be abbreviated “9/11.” See September
11 vs. 9/11, from April of 2009, http://williamcinfici.blogspot.com/2009/04/september-11-vs-911.html
and Personal Reflections on the Tenth Anniversary of the September 11 Attacks,
from September of 2011, http://williamcinfici.blogspot.com/2011/09/personal-reflections-on-tenth.html. The Independence Day holiday caused me to
think of another reason why “9/11” is inappropriate: the holiday is usually
nicknamed the “Fourth of July” or referred to simply as “July 4,” but never as “7/4.”
Also, I shall take the opportunity to expound on a point about Independence Day I first made on that holiday in a post in 2009. The Fourth of July represents neither the birthday of the “
States,” nor of the “Country” or “Nation” but the
anniversary of the declaration of independence from the United Kingdom
of the 13 original American States. Note:
the Continental Congress had approved the resolution of independence on July 2;
some States had already declared their independence. One could say it is the “birthday” of
American independence, but the federal union known as the “ United States of America”
did not exist until 1789, upon the ratification of the U.S. Constitution.