I am thinking today about the 193-page court opinion on Obamacare — National Federation of Independent Business vs. Kathleen Sebelius, Secretary of Health and Human Services — and how to avoid adding to the cloud of commentary that many worthies have offered.
But before I can take the hours to read it, I give a deep vacuuming of our front room for guests, have lunch with sons, engage in a verbal brawl and an on-the-carpet wrestling match with the youngest boy over catechism, and handle correspondence. Suddenly, it’s midafternoon.
On my PDF of the case, I do a shortcut to the strict constructionists — the dissenters. Having dealt with dissidents today among members of the Tulis clan, I find myself weary of it, little respected.
Yet I am a dissenter. Most of my life I have owned opinions and pursued goals that are part of the opposition, the minority. In the main, I am a Protestant whose convictions were secured as a matter of principle hundreds of years ago, often by the blood of men and women. I have fought for justice, hungered and thirsted for it, and have been blessed of God even though I have not achieved it.
A CHRISTIAN, PERHAPS, has more grounds for protest than a humanist. In our day, the humanist owns virtually the whole social, political and economic order (or, should we say, disorder). The critique of the Occupy protest was a mere brotherly squabble compared to the critique Christianity has of debt capitalism, corporatism and materialism. The basis for a Christian’s searching critique and recommendation for reform is the Word of God. Its promises and distinctions grant us not merely personal salvation from the consequences of sin. Certainly that is a great prize in God’s plan as it glorifies Him and saves the rebel.
But Christians have been taught in church that God also directs men in their public actions and their actions as representatives of others, whether they be monarchs, autocrats or senators. The Word claims to direct operation of governments, nations, universities, mints and armies. The Bible informs us how to live as marrieds, attached by love for life to a mate in a private dwelling but as part of a public commonweal under law for a public good.
BECAUSE GOD has a clear rule of law for His people, though parts of his jurisdiction are disputed by bold souls, He gives men a high mind. By that I mean they are furnished with ideas of what should be amid an array of details about what is. The Christian has before him an ideal, a method of thought, and a persistence to conquer. The Christian brings grace into the dealings of men. He brings liberty, respect and favor for others into the discourse. In business, he brings service. In matters of law, he favors a free market versus a cartel, monopoly or regulation. He favors open government rather than subterfuge. While recognizing the extent of the fall in Adam, he is exceedingly forbearing with other people, and tends toward a live-and-let-live perspective.
The survival of the Affordable Care Act is a matter of duress for many Christian people. We realize that the ruling restrains the oft-abused commerce clause and will check centralization and nationalization to a degree. Still, the decision marks the growth of the compulsory totalitarian economy with government as principal employer and capitalist.
AS YOU, TOO, MAY BE a dissenter, it’s worth a few moments to consider the overwhelmed arguments of Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito in the final paragraphs of their dissent. It is full of intelligence and informs us about our constitutional past:
The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available.
The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.
The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism concerns and places an unaccustomed strain upon the Union.Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary.
The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections — notably, the restraints imposed by federalism and separation of powers —are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments.
Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.
For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent.
