Monday, July 9, 2012

Lawyer Representing States Challenging Obamacare: Justice Roberts ‘Rewrote the Law’

Washington ( -- A lawyer representing the 26 states challenging the 2010 healthcare law said Monday that Chief Justice John Roberts, who wrote the majority opinion for the 5-4 vote that upheld the Constitutionality of President Obama’s healthcare law, “rewrote the law” when invoking the taxing powers of Congress to justify upholding the Affordable Care Act.

“He did not interpret the language that Congress enacted,” David Rivkin explained. “He rewrote it. In fact if you want to kind of flip an observation, just like on the front end, it took Nancy Pelosi, as per her mortal statement, remember ‘we need to pass the law to figure out what’s in it,’ it took the Supreme Court to rewrite the law to uphold it.”

He continued: “And clearly rewriting the law is not justified by the imperative constitutional deference. It’s not justified by going to the enth degree to parse the words in such a way as to save it from oblivion.”

David Rivkin, who served in both the Reagan administration and George H.W. Bush administration, said that re-conceiving taxing power troubled him far more.

He also said that re-writing the law wasn’t a judicial function.

“What troubles me far more, is the way he reconceived taxing power, makes it another specie of general police power, at least something that can easily morph into it,” Rivkin said.

Rivkin made his remarks alongside other legal and health policy scholars at the Cato Institute.

In his written opinion on the healthcare law, Chief Justice John Roberts wrote: “The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax."

“A weird sort of victory for federalism enclosed in a loss”

Legal scholars from across the political spectrum gathered Monday, June 2, at the Cato Institute to discuss the pros and cons of the Supreme Court’s recent decision to uphold the constitutionality of President Obama’s 2010 health care law.
Randy Barnett, a Georgetown Law School professor, said the decision “could have been worse,” and noted that while the healthcare law has been upheld, an advance on at least one front has been made: the scope of the Commerce Clause was not expanded although the individual mandate was upheld.

“As it is we made good law as opposed to bad law on the constitution,” Barnett said.

He also said that reversing the law “is within the power of the electorate.”

Ilya Shapiro, the Senior Constitutional Studies Fellow at the Cato Institute, expressed a similar view.

“Randy is right, this is a weird sort of victory for federalism enclosed in a loss,” he said.

“As I titled my SCOTUS blog yesterday ‘we won everything but the case,’” he continued.

But Barnett also reflected on another lesson from the decision: “five votes on the Supreme Court is not enough…Because if you only have five somebody breaks.”

Barnett made his comments a day after CBS News reported that Chief Justice Roberts switched his views to uphold the healthcare law.

According to that report, a source said that Justice Roberts was initially going to vote against upholding the law, but then switched his views to side with liberals on the court.

“Well we all know what kind of decision this was. First of all it was obvious on the face of the opinion before the reporting took place yesterday that this was a political decision. It was not a legal decision.”

“The legal merits were all on our side,” Barnett said.

Barnett said that if it was a political decision, it was a “foolish move if it was done out of calculation” and “not a smart move because it misreads the politics of the country” at this time, adding that it was an” illegitimate basis to make a constitutional ruling” if political.

‘Easily Reversed’

Barnett held out hope that the taxing power which was invoked to hold the law could be reversed.

“But what is the precedential weight of this decision? How binding is it on future judges? How much respect is it due given how we have a very good idea about how that fifth vote was obtained?”

Barnett said that with any kind of “change in our political culture” the tax part of this decision is not long for this world,” adding that it “could be easily reversed because it is not a weighty precedent,” Barnett said.

However, the he added that if the political culture does change as a result of the Supreme Court’s decision to uphold the healthcare law, the decision itself would “not pose a barrier to forward progress in limiting the powers of the federal government.”

Michael Cannon, a health policy scholar at the Cato Institute, said that the law was “weaker” and the path to repealing the Affordable Care Act was “clearer than it was one week ago.”

He cited the public backlash against the law, and states’ ability to block new expansions in Medicaid as things going in the direction of repeal.

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