All content on this blog from Tim McGhee has moved to the Tim McGhee Substack, and soon, Lord willing, will be found only on that Substack.

Sunday, July 1, 2012

A Chief Justice Reviewing the Chief Justice

Mr. GOHMERT. I've been going through this decision, and having been an attorney--and I've been a prosecutor and a judge and a chief justice. It was a small, three-judge court, but you learn things--you go to judicial conferences--about how to write opinions and things, never to the level of the United States Supreme Court. But as a certified member of the United States Supreme Court Bar, you follow the holdings of the courts.
So it's been with great interest, after I got my wind back from having found that Chief Justice Roberts wrote the opinion for the five-person majority, okay, so we start going through the opinion. Let's see how in the world he came to this conclusion.

Well, I'll be very brief in jumping through, even though it's a very long opinion, including the dissents. But the first thing that the Court had to consider is the Anti-Injunction Act that was passed by Congress years ago that makes very clear that the Supreme Court cannot take up any issue regarding a tax unless the tax has actually been levied and someone required to pay the tax, and then someone against whom the tax has been levied--required to pay that tax--files suit, that person then has standing. Well, under ObamaCare, if the mandate is a tax, the penalty is a tax, then the Anti-Injunction Act would kick in and no one would be allowed to have standing before the Federal district court, court of appeals, and certainly not the U.S. Supreme Court.
So the first thing the Supreme Court had to get past was the issue of: Is this penalty a tax? Because if it's a tax, then the Supreme Court must throw this case out, announce that the plaintiffs in these cases have no standing--and will not until around 2014--until such time as the tax is levied.
So the Court goes through, and if anybody prints out the decision, you can look at pages 11 through 15 specifically where they discuss the Anti-Injunction Act. They point out just, in essence, what I have hopefully clarified: If it's a penalty, then the Court can take it up. If the penalty that you must pay for not buying the insurance is a tax, then this case goes out, no Supreme Court decision for at least 2 to 4 years.
So Chief Justice Roberts--brilliant man, there's no question he's a very brilliant intellectual--he indicates this and says:
Congress's decision to label this exaction a penalty rather than a tax is significant because the Affordable Care Act describes many other exactions it creates that are taxes.
And he says this:
Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally.
So he goes on and he says:
The Anti-Injunction Act and the Affordable Care Act are creatures of Congress' own creation. How they relate to each other is up to Congress, and the best evidence--the Supreme Court's words, Justice Roberts' words--the best evidence of Congress' intent is the statutory language, the statutory text.
So he goes on to conclude that since Congress says in ObamaCare, the Affordable Care Act--boy, is that a misnomer, the Affordable Care Act--since Congress calls it a penalty, then Justice Roberts and the majority say it's not a tax; it is a penalty.
So around page 15 or so, 15, 16, they come around and say--I guess, 15, okay:
Congress made clear that the penalty is what it is--not a tax. Therefore, the Anti-Injunction Act does not apply, so our Court has jurisdiction. As he says, the Anti-Injunction Act, therefore, does not apply to this suit since it's a penalty and not a tax. Therefore, as he says, we may proceed to the merits.
Okay. So he clears it's a penalty; it's not a tax. Because if it's a tax, they can't do anything; they've got to throw it out. Okay. So it's a penalty, not a tax.
So then he goes on, after page 16, he goes on in the majority opinion to discuss this issue of whether or not it violates the Commerce Clause, this penalty. He comes to the proper conclusion that if Congress can mandate a penalty for not buying a product, there's nothing to stop Congress from intruding in every area of individual Americans' lives.
It's mentioned in this opinion that the main purpose--one of the two main purposes is to bring down the cost of health care. The Supreme Court thinks that's a legitimate reason to pass an act, bring down the cost of health care. But Justice Roberts and the majority decide it would violate the Commerce Clause, because if you can force individual Americans to buy a particular product in order to bring down the cost of health care, you can order anything. You and I can be ordered to join a gym and to start exercising X number of hours a week.
We're told that the Federal Government does not monitor debit card and credit card purchases--although, supposedly it could. Well, if it has a duty to bring down health care costs and it has the ability to watch your purchases, and, under ObamaCare, the Federal Government, through their relationship with General Electric--sweetheart deal they did with GE--they're going to hold everybody's medical records. So if they're holding everybody's medical records, then I don't know why they wouldn't go ahead and monitor everybody's cholesterol rate, blood pressure, things like that.
[Time: 18:40]
And so it could conceivably get to the point where, gee, you get a letter from the government that says, we notice your cholesterol rate's up to 250 or so and we notice you bought bacon this weekend. What were you thinking? You know, you've got to take that back. You can't keep bacon.
Anyway, there's no limit to what Congress can do to intrude in people's lives. And I'd point out to my friend from Georgia, liberals are constantly
[Page: H4428]
on the protection of bedroom privacy rights. I really thought that once they fully examined the potential effect of ObamaCare, they would be standing down here with you and me and my other friends hear, Louisiana, Georgia, they'd be out here saying, wait a minute. If the government has the right to order us to do or not do acts or buy or not buy products for the sole purpose of bringing down the costs of health care, there are studies that say some certain relational activities create more risk for health care problems than others, so if this is true, the Federal Government would have the right not only to invade the kitchen and the bathroom, but head straight to the bedroom and dictate people's rights.
I didn't want to go there, and I felt like once we found out that Chief Justice Roberts makes clear, this is a penalty, not a tax, it violates the Commerce Clause to force people to buy a product like this, you would think that would be the end of it.
But then Chief Justice Roberts goes on, and it doesn't make sense because then he begins to say, well, it violates the Commerce Clause, but does it violate the Tax-and-Spend Clause?
And then he goes through and makes a case for saying, it's not a penalty, it's a tax. And he's already told us that the best way to tell what it is is to look what Congress called it. And I think, in this case, not only look what Congress called it, look at what the President called it.
I just happen to have a partial excerpt or an excerpt from the transcript of a show the President did with his friend, George Stephanopolous. And Stephanopolous is asking him about it and said, you know, under this mandate, the government's forcing people to spend money, fining you if you don't. How is that not a tax?
Well, President Obama goes on and he lays out all this weak gibberish, and eventually gets--Stephanopolous interrupts him and says, okay, that may be, but it's still a tax increase. And the President said, that's not true, George. For us to say that you've got to take responsibility to get health insurance is absolutely not a tax increase.
The President also says, nobody considers that a tax increase.
He's not done making clear the will of the Congress and of the President, who pushed this bill to make it his shining bill that he had passed through Congress. Stephanopolous goes on and says, I want to check for myself, but your critics say it's a tax increase. President Obama says, my critics say everything is a tax increase.
Stephanopolous: But you reject that it's a tax increase.
President Obama says, I absolutely reject that notion. Not a tax increase.
So you would think that if Chief Justice Roberts and the majority, the other four, are going to uphold the President's prize bill, he might accept what the President said he's done in this bill. But oh, no.
After finding that it's not a tax, it's a penalty, then Chief Justice Roberts comes over to page 39 and he says, the joint dissenters argue that we cannot uphold section 5000(a) as a tax because Congress did not ``frame it'' as such.
And then he goes on and he says, labels should not control here.
What? He just said before, Congress' own expressed written intent is the best evidence of what their intent is. And yet, now he comes over here, page 39 and says, wait, wait, wait. We have to look at what the intent is, but labels should not control.
So then he goes through and makes this ridiculous argument that it is a tax. And he says over here, page 44, the Affordable Care Act's requirement that certain individuals pay a financial penalty for not obtaining health insurance may be reasonably considered as a tax because the Constitution permits such tax. It's not our role to forbid it or to pass upon its wisdom or fairness.
But then, one of the big mysteries in this brilliant man's opinion for the majority uses the first person pronoun, I. Now, you know, anybody that's been a judge, normally you go to judicial conferences, you have seminars, you have training in writing style. If it's an individual judge, sole court opinion, then you'll write it one way. If it's a multiple justice opinion you write it another way.
You see first person pronoun I in dissents, even though it's really not the best grammar to use pronouns in dissents. But you don't see them in well-written majority opinions. And Chief Justice Roberts is one of the best linguists we've had on the Court.
And he takes Justice Ginsberg to task a few different places in the majority opinion, and yet, she is one of his voting justices to support the majority. That doesn't make sense.
You don't normally see one justice writing the majority opinion take off and criticize someone who's voting with him. That doesn't make sense. But here at page 44 he says, Justice Ginsberg questions the necessity of rejecting the government's commerce power argument, given that section 5000(a) can be upheld under the taxing power.
He says, Chief Justice Roberts, majority opinion, but the statute reads more naturally as a command to buy insurance than as a tax. So now he's back to what he originally said before he says it is a tax.
And then he says this: And I, Chief Justice Roberts, would uphold it, talking basically of future perfect tense. I would uphold it as a command if the Constitution allowed it. I would uphold it.
He's writing for the majority. There's no reason for him to have the first person pronoun ``I'' there. It doesn't make sense. I don't know. Maybe this part he was writing as a dissent, and all of a sudden found himself in the majority, and amazingly, nobody caught this problem of style in writing the opinion.
It doesn't make sense that a man that smart would have a product this poor, using first person, criticizing another justice in the majority with him, then saying what he would do. Well, he is doing, he's writing the majority opinion. He has no business saying that.
And then he goes through, it says the States also can end Medicaid, expansion exceeds authority under the spending clause. But basically he comes back and upholds it, and then strikes down that you can't force the States to do these things.
But, I remind my friends, the President says it's absolutely not a tax. The only way this bill gets upheld is if the Supreme Court finds it is a tax after they find jurisdiction by saying it's not a tax.
But this is the same President who said, if you like your health insurance, you're going to keep it. He said, if you like your doctor, you can keep your doctor. We found those were lies.
He said, it's going to bring down the cost of health care. In every indication we've seen, insurance has dramatically gone up. And I get tired of hearing people say, because their memories are poor in here across the aisle, well, look at the good things in here. Twenty-six year olds can be on their own parents' insurance. Gee, you can buy insurance across State lines because of us. We've taken care of the unfairness that some insurance used with preexisting conditions as an exclusion.
But I would encourage my friends, I know my colleagues here remember, back when they had the House, they had the Senate majority, they had the White House, Republicans, many of us begged them, let us do some bipartisan bills together because we can agree. It's not a problem to let 26-year olds stay on your parents' insurance. Heck, the insurance companies love that because they are usually healthy. It's not a big cost. So we were going to be able to agree on that.
It was a Republican, heck, John Shadegg is the first one I ever heard saying you've got to sell insurance across State lines. That was a Republican idea, so of course most of us supported that.
[Time: 18:50]
As for the preexisting conditions, most of us are aware of circumstances in which insurance companies have been grossly unfair in using that exclusion. We were prepared to reach some agreements and have bipartisan, standalone bills. I know that my friend Dr. Price out here had some concern about health care, his having devoted his life to it before government, trying to fix what government had done to health care. People have been concerned about it. We were willing to agree on these things, but they would not have it.
So to say without ObamaCare we don't have these other things is simply not true, and it forgets current history. We were ready to agree on standalone
[Page: H4429]
bills. They didn't want a bipartisan agreement. They wanted the whole brass ring and to shove it around our heads, around our necks, and eventually down our throats, and that is what has happened. I've been amazed at how many people have picked up laws and started reading them, and I would encourage them to read this opinion. It's a very, very strange opinion. It contradicts itself on so many levels.

ObamaCare takes away religious freedom. I'm Baptist. I see what they're doing to the Catholics, and I don't want to someday say, ``I saw what they did to the Catholics, and I remained silent,'' and eventually there wasnobody to object when they did it to me. We all have to stand together, and I'm grateful to stand with my friends.
One other comment. I heard my Democrat friends before we spoke say, without this ObamaCare bill, these clinics will die.
There have been clinics before the ObamaCare bill that helped. We have some in my district, and they're doing wonderful work. They need more help. The best are, really, charitable institutions. The clinics are not going to die.
What came from the President's mouth and was also in his town hall was when a woman in the White House, as part of the town hall, said, Mr. President, at an advanced age, my mother got a pacemaker. If the doctor had not met her, the cardiologist was not going to let her have a pacemaker. After he met her, he said, absolutely, and she has lived years beyond that since she has had a pacemaker. So would you consider someone's quality of life under your panels--we know they don't want to call them ``death panels,'' but whatever you want to call them--will they be able to consider the quality of life that people have before they agree or disagree to let them have a procedure?
The President beat around the bush as he did with Stephanopoulos--and you can find the transcript. It's available on the Net--and ultimately said, You know, maybe we're just better off telling your mother to take a pain pill. You don't get a pacemaker. You don't get these additional years of life. You get a pain pill.
So, when our friends across the aisle tonight say that the clinics will die, I would humbly submit that, based on the President's own words, it's not the clinics that will die under this bill.
I thank you so much for your generous yielding of so much time. It's a bad opinion, and I appreciate having the time to walk through some of it.

No comments:

Blog Archive