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

Washington (GoinsReport.com) -- 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.

Weekly Health Review, Vol. 7

Editor's Note: The Goins Report did not publish a Weekly Health Review last week and resumes publication this week.

Health Care Miscellany

Senator Mike Lee (R-Utah) published a series of videos discussing the health care law and the Supreme Court's decision.

Ohio, New York, and Caifornia lawmakers are pushing for a ban on smoking in public on college campuses, the Associated Press reports.

The mother of all Big Macs is being sold at the 2012 Olympic Games, the Associated Press reports.

The U.S. Preventive Services Task Force issued guidelines on obesity, the Associated Press reports.

Free aids tests at Drug stores planned by CDC, the Associated Press reports.

The President left out vital information about the highest risk group when touting National HIV Testing day, CNSNews.com reports.

A young Italian mother postpones cancer treatment to save the life of her child, LifeSiteNews.com reports.

The Health Care Law is Upheld

The Hill newspaper notes that the ruling allowed Justice Roberts to avoid repercussions that both sides -- liberals and conservatives -- feared, namely, striking down the law and expanding Congress's powers. It also noted that the five SCOTUS Justices were the first in the country to side with the Obama administrations tax argument.

Politico notes that Thursday's decision settles the constitutional question of whether the government can force people to buy health insurance or not.

Bloomberg notes that companies, medical device makers, and wealthy investors face $813 billion dollars in taxes over 10 years, with the largest fees taken next year in 2013. It also notes that if the Bush tax cuts expire at the end of 2012, wealthy taxpayers' now-15 percent top rate on long-term capital gains and dividends would reach 20 percent and 39.6 percent, respectively.

A council of churches hails the Supreme Courts decision to uphold the 2010 Healthcare law as Constitutional, the blog Juicy Ecumenism reports.

The Supreme Court's decision to uphold the law makes President Obama a "monumental liar," CNSNews.com reports.

Health reform means new taxes, new fees, and new penalties, CNN Money reports.

After SCOTUS upholding of PPACA, a conservative lawyer says that Obama's vision of "fundamentally" transforming America was fulfilled, CNSNews.com reports.

Free Download: What Has Government Done To Our Healthcare?

Thomas Sowell on What Fascists, Socialists, and Leftists Have In Common

What socialism, fascism and other ideologies of the left have in common is an assumption that some very wise people — like themselves — need to take decisions out of the hands of lesser people, like the rest of us, and impose those decisions by government fiat.

Thomas Sowell, Socialist or Fascist?

FLASHBACK: Ron Paul tells Americans to "Prepare for the Worst"; Predicts "Government Bond Bubble"

In 2001, Rep. Ron Paul (R-Texas) predicted the housing crisis on the floor of the House of Representatives.

In 2009, he gave a speech among friends predicting that another bubble has yet to burst: the government bond bubble. He in essence warned that the "solutions" taken to "save our economy" didn't; and that the worst has yet to come.

WaPo: 'Mitt Romney, Keynesian'

Ezra Klein notes.

Weekly Health Review, Vol. 6

Rep. Bachmann says that issue in HHS contraceptives mandate debate is whether government can stand in the place of God, CNSNews.com reports.

Politico explains the three scenarios for the president when the Supreme Court rules on the health care law.

HHS Secretary Sebelius says that 11,000 new beneficiaries are added to Medicare daily, CNSNews.com reports.

Democrats dismiss Republican investigation showing White House officials sought to steer the content special interest groups pro-health care law advertisements, Reuters reports.

FLASHBACK: Presidential Candidate Ron Paul says that he would preserve government entitlements while transitioning Americans to Health Savings Accounts (HSAs), CBS News reports.

FCC Commissioner says that the number one complaint to the FCC is “please regulate my rival”

Washington (GoinsReport.com) – A 2006 Bush appointee to the Federal Communication Commission and later reappointed by President Obama in 2009 as one of the four FCC commissioners said Tuesday that the number one complaint to the FCC is “please regulate my rival.”

“The most common request we get really at the FCC when you boil it down to its nub is ‘please regulate my rival,’” said Republican FCC Commissioner Robert McDowell. “And the subset of that is ‘please may I have some benefits, some regulatory benefit or rule that benefits just me and without any strings attached. No cost to me whatsoever.”

The commissioner went on to say that mindset is not only present domestically, in consumer complaints, but present internationally as well.

 “So there are some [telecommunications] carriers who are having a debate as to whether or not it could just slice open the ITRs just a little bit to have an international sanction,” McDowell said.

“To force, in effect, an international law, in order to be able to charge content or application providers, maybe under some sort of tariff regime or something that’s maybe more of a loose outline, but have the force and effect of an ITU or other international sanctions of law. So I think we need to be very careful of that.”

The ITRs, or the International Telecommunication Regulations, is a global treaty developed at the 1988 World Administrative and Telegraph and Telephone Conference, and has 178 countries’ signatures.

ITRs set principles regarding the ability to exchange and use information between telecommunications facilities, international telecommunications services and transport, and accounting for international voice traffic—the sum of international incoming and outgoing telephone traffic—between administrations.

The ITRs began when states had monopolies on telecommunications and before the rise of the internet. The internet is not currently within the scope of the ITRs.

However, several ITU member countries have moved toward more control over aspects of the internet and their proposals will have a hearing in December at the World Conference on International Telecommunications in Dubai.

The commissioner made his comments at a panel discussion on Capitol Hill on “What Role Should the UN Have in Governing the Internet?” – a discussion on some of the troubling regulatory proposals on the internet from some but not all of the 193 members states of the International Telecommunication Union (ITU).

The ITU is a specialized United Nation’s agency dealing with telecommunication.

Weekly Health Review, Vol. 5

46-year-old man cured of AIDS, ABC News reports.

A liberal Massachusetts democrat is worried about tainted seafood caught in San Diego, The Hill reports.

The White House threatens to veto Republican bill that will lower taxes on medical manufacturers, the Associated Press reports.

Students face premium increases or no coverage at all in the coming 2012-2013 academic school year, the Wall Street Journal reports.

The Health and Human Services secretary touts ACA's benefits to the lesbian, gay, bisexual, and transgender community, The Hill reports.

A new smart drug targets cancerous cells and spares healthy ones, the Associated Press reports.

Gonorrhea is becoming more resistant to drugs, experts say, the Associated Press reports.

Unemployment Rate Drops Because 522,000 Give Up Jobs Search

About 45,000 fewer jobs were added in April than economists expected, and the unemployment rate dropped to 8.1 percent due to more than a half million people giving up the job search. CNN Money reacted with the headline “hiring fizzles.”

University of Maryland Economist Peter Morici wrote in response the jobs report, “The economy added 115,000 jobs in April - much less than expected and not enough to keep up with natural population growth. The unemployment rate fell to 8.1 percent because another 522,000 adults quit looking for work and are no longer counted.”

Unemployment Rate Drops Because 522,000 Give Up Jobs Search | Media Research Center

Video: Mathemagics?

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