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.
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