Is the Affordable Health Care Act ruling really a ‘Trojan Horse’ that could undermine future decisions?

‘It could set back governmental powers 75 years’

By JOHN H. GOFFSTEIN

A LABOR TRIBUNE EXCLUSIVE

© Labor Tribune Publishing Co.

The 2010 Patient Protection and Affordable Health Care Act (ACA) will have a massive effect on employers and unions for years to come.

Every part of health care is covered by the new law and it will have a profound effect between 2012 -2014. That’s good on the surface. However, I am compelled to provide Labor Tribune readers with a disturbing insight on a related real issue: The Judicial limitations imposed upon Congressional legislative power.

The decision to uphold the law creates an immediate plus for national health care but the reality of the enabling language in the ruling will have an adverse impact on representational government long into the future on issues directly related to health care as well as all other social welfare and other legislation.

UPHOLDING THE ACA: A TROJAN HORSE

The decision to uphold this Act is a Trojan horse in that it is not the gift to the Progressives that it appears to be on the surface.

Why? Because the High Court’s reasoning in upholding the ACA is based on a narrow interpretation of the Act and a broad but restrictive vision of the law as it relates to the taxing power of the United States.

The key provision is the individual mandate. This requires a tax or penalty to individuals who do not secure health care coverage through alternative sources, like insurance, Medicare or employer or union sponsored health plans.

This individual mandate that requires covered participants to purchase health care was proposed by Republican congressional leaders as early as 1989 for the express purpose of bringing individual responsibility to the issue. At present, even with the individual mandate, the Act still excludes well over 20 million Americans from coverage under the ACA according the Congressional Budget Office. The U.S.A. may have come a long way but it still has not achieved universal healthcare and that now appears to be a mission impossible for Congress to undertake considering the practicality of the legislative constraints in the Roberts’ decision.

Justice Roberts refused to uphold the law until the presentation of the Obama Administration’s last alternative legal point before the Court — the taxing powers of Congress to fund the ACA saved the Act. The Court allowed a penalty or “tax” to stand against those who fail to purchase health insurance to prevent those who intend to use the system without paying for it from driving up health care costs for those who pay for coverage. The Roberts Court found this penalty to be within the taxing and spending powers of Congress and thus, upheld the law.

The Trojan Horse in the ruling is that it gives with one hand – upholding the legality of the mandate and thus the ACA law itself — but with the other hand the decision attempts to clearly limit the traditional power of Congress to govern by, and through, the Commerce Clause of the United States Constitution. This is a setback in American jurisprudence and is extremely dangerous!

Why is the Commerce Clause so important? The Commerce Clause (Article I, Section 8, clause 3) is a specifically enumerated power in the Constitution giving Congress the right “To regulate Commerce … among the several States.” It is part of the Supremacy powers of the federal government (as set out in Article VI, Clause 2 of U.S. Constitution. Under the Supremacy Clause, the federal government must still act in accordance with its constitutionally authorized powers).   

Yes, States Rights (the 10th Amendment), a historical favorite of the far right, is now stronger than ever as a result of the Roberts Court majority decision.

Because the Court ruled that the Act’s expansion of Medicaid coverage to the States was unconstitutional without the consent of the States. It’s ruling also made the point that the federal government’s power to penalize States that chose not to participate in the Act’s expansion of the Medicaid program exceeded Congress’s power under the Spending Clause of the Constitution.

A little understood part of the ACA ruling is that Roberts and the Republican-appointed majority thus eviscerated Congressional powers by stating that Congress exceeded its authority to implement health care under the Commerce Clause and declared this traditionally approved delegation of legislative power … unconstitutional.

The decision thus adversely limits Congress’ representational powers to regulate the economy for the common good.

SUBVERTING LEGAL PILLARS

Roberts’ reasoning is an intentional attempt to ‘turn back the clock’ and adversely subvert the now established legal pillars of the historic New Deal legislation.

Examples:

• Previous Commerce Clause legislation, and solid judicial precedent, protected the basic rights of unions and working people without requiring that such laws be first premised upon the taxing powers of Congress.

• The Civil Rights Act and a legion of other social welfare legislation, including entire administrative agencies and departments within the government, owe their very existence to the constitutionality of the expansive powers of Congress under the ‘Necessary and Proper’ authority of the Commerce Clause.

The constitutionally protected rights guaranteed to the people have been severely weakened and undermined by this Court’s little recognized, secondary ruling in the ACA case by the five Republican-appointed judges.

Roberts only temporarily quieted the discontent from the Left when he ruled in the ACA case that the Court should strive to uphold the constitutionality of Acts of Congress providing that the Legislature has grounded statutes that outline reasonable legitimate governmental rights and powers.

While that statement makes sense, and is a traditional form of judicial allowance in not second guessing legislative wisdom or powers, Roberts then goes on to unceremoniously knock out ‘The Commerce Clause’ of the U.S. Constitution. Now, Congress’ ability to legislate for the general welfare with subsequent necessary expenditures, without taxation, is in grave doubt.

It is generally overlooked that when Justice Roberts announced the Court’s opinion on the ACA, he was joined by the so-called Liberals for only various parts of the case.

While Justice Ginsburg, joined by recent Obama and Clinton appointees Sotomayor, Kagan and Breyer, each voted to uphold the law —and this is key — they dissented to the Roberts’ majority ruling by arguing that the Commerce Clause authorizes Congress to enact the minimum coverage provisions of the Statute without regard to its taxing powers.

The so-called liberal dissent also takes issue with the majority and opines that the purpose of the Spending Clause in the Constitution (dating back to Alexander Hamilton and James Madison) permits — even mandates — the Medicaid expansion provisions of the Act to the States exactly as Congress intended it in the ACA law.

Justice Ginsburg hardly hid disdain for ignoring established law in expressly stating that Chief Justice Roberts’ both historically narrow and rigid ruling of the Commerce Clause is “spurious,” makes “scant sense” and is “stunningly retrogressive” creating a “crabbed reading” of the law harking back to the era in the 1930’s in which the Court routinely thwarted representational government.

THE TRUE LEANINGS OF

THIS MAJORITY OF THE SUPREME COURT

Rumors to the contrary, there is no so called “new majority” even though many legal scholars are advising that when Conservative Chief Justice Roberts joined with the Liberal branch of the Court for the ACA ruling, it was to restore public credibility to the Court itself thus illustrating that our legal system is not one of politics but of the body politic.

This conclusion is dead wrong.

In short, some scholars contend that the Chief Justice’s goal was to communicate that Judges are not just politicians in black robes.

That mindset is essentially good, and if it were true would restore faith in the importance of impartiality in the decision-making process.

The very credibility of the Court became the issue after Bush vs. Gore (allowing the election of George W. Bush by overruling the Florida Supreme Court’s findings of massive voter fraud) and Citizens United (allowing unlimited cash from a few rich donors to dominate our elections from anonymous and even foreign sources).

Unfortunately, the underpinnings of the health care ruling as outlined here do little to restore faith in the intellectual honesty of the Court. This Court’s narrow interpretation of the ACA law will generate a massive amount of litigation. I strongly urge litigators seeking to strengthen the Commerce Clause capacity and protections to ‘keep their powder dry’ until we have a new and different Court.

The Roberts decision has the effect of setting back the powers of the Federal Government to that as it existed over 75 years ago when President Roosevelt became so frustrated with a conservative Court’s striking down New Deal legislation that he attempted ‘to pack’ the Supreme Court by adding six new justices, a failed move designed to protect the voice of the electorate.

POLITICAL IMPLICATION IN THIS ELECTION

The truth is that the total ACA decision is an attack on Congress and the federal government as we know it.

The scary part is that it may well be telling Americans that there will be no Obamacare, or any future social programs, without taxation. In short, pay as you go is the order of the day.

It can be argued that the translation of this interpretation to the public in an election year is as follows:

“If you want to vote for Democrats as they legislate for what they perceive to be the mandatory common good, prepare to be taxed if any future financial obligations are imposed on the public, employers or individuals.”

This interpretation makes any legislation a tough political sale.

Make no mistake, the subtleties of the ACA ruling clearly define Justice Roberts as an activist archconservative engaging in his own form of legislation FROM THE BENCH and as such, the Court will continue to be deeply divided on fundamental legal issues for years to come.

THE FUTURE IS AT STAKE

Only time will tell but one thing is clear, the real meaning of the health care decision illustrates that the right wing majority of the Court still exists by a 5 to 4 conservative Republican margin. It is apparent that this Court remains far apart on any agreement as to the crucial issues of the very role of the Court in modern society. Conservatives politically hate what they refer to as ‘big government’ and this decision strongly reinforces that point of view.

Given that there is the distinct possibility that the President (whether Democrat or Republican) will appoint new Justices within the next four years, the November election will be instrumental in determining the future of the Court and its ability to either curtail or protect the regulatory and governing rights of The People.

(John H. Goffstein is a veteran trial lawyer with over 40 years experience. He was chairman of the Employment Law Section of the St. Louis Metropolitan Bar Association and served as president of the St. Louis County Bar Association. Both Governors and Mayors have appointed him to public office. He has often served as guest lecturer at the University of Missouri, St. Louis University and Washington University Schools of Law. He was a founding Member of Bartley Goffstein LLC and currently practices law with his son, Adam, as “Of Counsel” to the Goffstein Law Firm in Clayton. He can be reached at John@GoffsteinLaw.com)