Conservatives across America have to be asking themselves why they put so much time, money, and energy into electing Republicans when the supposedly conservative Supreme Court justices who follow side with the Left in important cases.
The latest jurisprudential atrocity is the high court’s dreadful but not altogether unexpected betrayal of the U.S. Constitution in California v. Texas, a challenge to the Obamacare redistribution statute lodged by Texas and 17 other states that had been backed by the former Trump administration.
“It’s never been a proper role for the federal government to regulate health care and health insurance,” Robert Henneke of the Texas Public Policy Foundation, who represented two individual plaintiffs, said after winning at the trial court level. “It is a proper role for the states.”
There are 6 conservative justices and 3 liberal justices on the Supreme Court, or so the conventional wisdom goes.
Yet instead of dealing with the legal controversy head on, a majority of the court chickened out, failing for a third time to mete out a richly deserved death blow to the flagrantly unconstitutional, un-American monstrosity that is the Patient Protection and Affordable Care Act (ACA). By a vote of 7–2 on June 17, the Supreme Court cavalierly brushed aside questions of the law’s constitutional validity by finding that those challenging it lacked the required legal standing to do so.
Of the three Trump appointees, two –Justices Brett Kavanaugh and Amy Coney Barrett— voted to protect the ACA. Even the most brilliant member of the court, conservative stalwart Justice Clarence Thomas, bought into this cowardly nonsense, siding with the majority on standing.
This ruling should disabuse Americans once and for all of the claim, repeated ad nauseam by the Left, that the Supreme Court, which momentarily is dominated by Republican appointees, is somehow “conservative” or “right-wing.”
It also demonstrates that threatening to pack the court, as Democrats vow to do, is an effective way of making sure the court fails to do its job.
After all, the Supreme Court does what it wants to do. In controversial cases, it sometimes adheres to the Constitution, as its members are sworn to do; other times it just makes stuff up, issuing incoherent decisions written to justify a predetermined conclusion. Invoking standing is a tried and true method of copping out.
After the court opinion in California v. Texas was released, Texas Attorney General Ken Paxton said what needed to be said.
“Obamacare was sold on a lie to the American people,” the Republican wrote on Twitter.
“Its crown jewel —the individual mandate— was unconstitutional when it was enacted and it is still unconstitutional. Yet, seven justices decided to avoid the question of the constitutionality by limiting its decision to a ruling on standing. If the government is allowed to mislead its citizens, pass a massive government takeover of health care, and yet still survive after Supreme Court review, this spells doom for the principles of federalism and limited government.”
“The failed Obamacare system will stagger on as a result of this decision,” said Sen. John Barrasso (R-Wyo.), a physician who has worked to repeal the law. “Every American’s health care has been harmed by Obamacare.”
Recall that in the 2008 campaign, then-candidate Barack Hussein Obama lied to voters, claiming that his health care scheme would drive annual premiums down by $2,500, and that patients would not see their health care arrangements disrupted. Even left-leaning PolitiFact deemed Obama’s mantra, “If you like your health care plan, you can keep it,” its “Lie of the Year” in 2013.
After BHO conned his way into the Oval Office, the law was enacted in 2010 without a single Republican vote in Congress on final passage. Later, Obamacare “architect” and MIT economist Jonathan Gruber said lying was essential to getting it done. It was “the stupidity of the American voter” that made it important to conceal Obamacare’s true costs from the public. “That was really, really critical for the thing to pass,” he said.
Insurance premiums have shot up since then. The Kaiser Family Foundation reports that the total cost of the average employer-sponsored family health insurance premium increased to $20,576 in 2019, up from $13,375 in 2009, a 54 percent increase. In individual markets, premiums rose from an average of $2,640 ($220 per month) in 2011 to $6,960 ($580 per month) in 2019, a 164 percent increase. Many consumers haven’t been able to afford premiums and have lost their insurance.
Finally, the case of California v. Texas came along, affording the Supreme Court a wonderful opportunity to at long last drive a stake through Obamacare’s heart.
Congress teed up the case by making the ACA’s individual mandate disappear in the Tax Cuts and Jobs Act of 2017 by reducing the tax penalty for not purchasing insurance to zero. Those fighting the statute in the current case argued that the revised law ran afoul of the Constitution because the individual mandate was so integral to the law that Obamacare couldn’t function without it.
At the end of 2018, Texas-based federal Judge Reed O’Connor sided with the challengers, ruling they had standing and that the Obamacare law was unconstitutional in its entirety.
In 2017, Congress “sawed off the last leg [Obamacare] stood on,” wrote O’Connor, who was appointed by President George W. Bush. The “mandate ‘is essential to’ and inseverable from ‘the other provisions of’” the law, he wrote.
But the Supreme Court had no interest in doing the right thing.
The majority opinion in California v. Texas was written by liberal Justice Stephen Breyer, though it reads like something written by the weaselly virtue-signaling fake conservative Chief Justice John Roberts. Roberts, along with conservative Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett, joined the majority opinion. Naturally, liberal Justices Sonia Sotomayor and Elena Kagan also joined it.
Roberts, who wrote the NFIB v. Sebelius decision, had said during oral arguments November 10, 2020, that the Supreme Court had no business striking down unconstitutional statutes.
“On the severance question, I think it’s hard for you to argue that Congress intended the entire Act to fall if the mandate were struck down when the same Congress that lowered the penalty to zero did not even try to repeal the rest of the Act,” Roberts told Texas Solicitor General Kyle D. Hawkins.
“I think, frankly, that they wanted the Court to do that. But that’s not our job,” Roberts said in an assertion that would no doubt surprise his predecessor John Marshall, who invented judicial review in 1803 in the seminal Marbury v. Madison ruling.
Roberts was in fact wrong when he said Congress did not try to repeal the Obamacare law. The Tax Cuts and Jobs Act that zeroed out the mandate-related penalty came out of the 115th Congress (2017–2018). In fact, lawmakers voted on several bills in that Congress that would have repealed Obamacare.
Returning to the case at hand, Breyer wrote that the 18 states argued that without the penalty the law’s “minimum essential coverage requirement,” as he put it in pleasant-sounding language, was unconstitutional.
They said “neither the Commerce Clause nor the Tax Clause (nor any other enumerated power) grants Congress the power to enact it,” Breyer wrote. “They also argue that the minimum essential coverage requirement is not severable from the rest of the Act. Hence, they believe the Act as a whole is invalid.”
Then Breyer began the excuse-making.
But the Supreme Court does “not reach these questions of the Act’s validity” because “Texas and the other plaintiffs in this suit lack the standing necessary to raise them.”
Article III of the Constitution “gives federal courts the power to adjudicate only genuine ‘Cases’ and ‘Controversies[,]’ … [and] includes the requirement that litigants have standing,” Breyer wrote.
A “plaintiff has standing only if he can ‘allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.’”
Citing two precedents, he stated fatuously that, “Neither the individual nor the state plaintiffs have shown that the injury they will suffer or have suffered is ‘fairly traceable’ to the ‘allegedly unlawful conduct’ of which they complain.”
Another way of putting this is to say that the Supreme Court didn’t care about the needless hardship and suffering Obamacare has imposed on Americans without controlling costs, which keep rising and rising.
The court lacked the resolve to do the right thing and actually interpret the Constitution, so, as it has done many times before, the court chose the result it wanted and then after the fact threw together yet another poorly reasoned written opinion to justify the desired outcome.
“Standing, after all, is not a complicated concept,” Andrea Widburg wrote at American Thinker, citing Whitmore v. Arkansas (1990).
It requires a litigant to clearly demonstrate he has suffered an “injury in fact,” which “must be concrete in both a qualitative and temporal sense.” The litigant must allege an injury to himself that is “distinct and palpable,” not merely “abstract … and the alleged harm must be actual or imminent, not ‘conjectural’ or ‘hypothetical.’” The litigant must also show the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision.”
So what would it take to demonstrate an “injury in fact”? Surging health care cost-related bankruptcies? Reduced hiring by employers because health insurance is unaffordable? An increase in morbidity rates because patients can’t afford to go to the doctor? Rising suicide rates resulting from sick patients killing themselves because they can’t get the care they need? Dead bodies overflowing from morgues?
If the Supreme Court doesn’t want to rule on the merits of a case, the standing excuse is an easy out.
Justice Samuel Alito used sarcasm to slam his colleagues for engaging in legal sophistry because they didn’t want to do the right thing.
“Today’s decision is the third installment in our epic Affordable Care Act trilogy, and it follows the same pattern as installments one and two,” Alito wrote in a dissenting opinion that was joined by Justice Neil Gorsuch.
“In all three episodes, with the Affordable Care Act facing a serious threat, the Court has pulled off an improbable rescue.”
Let’s go over the other two constituent parts of the trilogy.
In NFIB v. Sebelius (2012), the Supreme Court upheld the statute 5–4, on the theory that the individual mandate—which compelled Americans to buy health insurance even if they didn’t want it—was somehow a valid exercise of Congress’s power to tax.
The court again threw a lifeline to Obamacare in King v. Burwell (2015), finding 6–3 that even though the law provides that Congress makes tax credits available only on an “Exchange established by the State,” the latter phrase actually means on an “Exchange established by the State or the Federal Government,” as the justifiably angry late Justice Antonin Scalia wrote in his dissenting opinion.
In his dissent in California v. Texas, Alito wrote, “No one can fail to be impressed by the lengths to which this Court has been willing to go to defend the ACA against all threats.”
“A penalty is a tax. The United States is a State. And 18 States who bear costly burdens under the ACA cannot even get a foot in the door to raise a constitutional challenge. So a tax that does not tax is allowed to stand and support one of the biggest Government programs in our Nation’s history. Fans of judicial inventiveness will applaud once again. But I must respectfully dissent.”
Perhaps Justice Thomas’s conscience bothered him so instead of doing the right thing he slammed his colleagues for wrongly deciding NFIB v. Sebelius and King v. Burwell.
“But, whatever the Act’s dubious history in this Court, we must assess the current suit on its own terms. And, here, there is a fundamental problem with the arguments advanced by the plaintiffs in attacking the Act—they have not identified any unlawful action that has injured them,” he wrote in an opinion concurring with the majority.
And although Gorsuch may have done the right thing in this case, his brief tenure on the court does not inspire confidence.
With Gorsuch’s majority opinion last year in the 6-3 decision in Bostock v. Clayton County, the justice used the court as a national super-legislature and amended a law without involving actual elected lawmakers. (Roberts was the only other conservative in the majority.) Gorsuch stretched the meaning of the word “sex” in Title VII of the Civil Rights Act of 1964 to include sexual orientation and gender identity, something nobody thought it meant in 1964. As then-Solicitor General Noel Francisco said during oral arguments, “Sex means whether you’re male or female, not whether you’re gay or straight.”
“Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII,” Alito wrote in a dissenting opinion.
“But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. It indisputably did not.”
But I digress, sort of.
Over the past year the Supreme Court has left the American people at the mercy of radical leftists.
Power-mad governors and mayors inspired by swamp creature Anthony Fauci and fed bogus data by lying, monomaniacal epidemiologists, declared war on the American people as they combated the Chinese virus that causes COVID-19.
The Supreme Court stood by for the most part and allowed the Left’s ongoing experiment in social control to proceed unimpeded. Ditto for the election-related challenges brought by President Donald Trump and Republicans, which seem more and more justified with each passing day as post-election audits and investigations continue.
There was so much justice to be done, but the Supreme Court refused to do it.
As it turns out, what seemed true before the ruling has only come into sharper focus after it: good, patriotic people who believe in the American idea cannot count on the Supreme Court, which has long enjoyed reverence it does not deserve, to save America.
We will have to do it ourselves.
This article by Matthew Vadum appeared June 23, 2021, at FrontPageMag.