Why Has Chief Justice Roberts Moved From Umpiring To Batting On Healthcare? (Forbes.com) June 26, 2015

Could someone please remind Chief Justice John Roberts of his opening statement to the Senate Judiciary Committee in his confirmation hearings in 2005?  That’s when he described his all-important judicial philosophy by saying:  “Judges are like umpires.  Umpires don’t make the rules; they apply them…I will remember that it’s my job to call balls and strikes and not to pitch or bat.”  I ask because his majority opinion in the King v. Burwell case this week is the second time he has rewritten the Affordable Care Act (ACA) in order to save it, moving out of the umpire’s stance directly into the batter’s box.

In King v. Burwell, the Court needed to decide whether the phrase “an Exchange established by the State” meant just state or could include federal exchanges.  Justice Roberts, writing for a 6-3 majority of the Court, found the language was ambiguous, which permitted the Court to look more widely at the purpose of the law and decide its purposes would not be accomplished if state didn’t also mean federal.  In his sharp dissent, Justice Scalia said, “Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

The general view around Congress had been that the language had simply been a mistake.  Indeed, the Court acknowledged that the ACA “contains more than a few examples of inartful drafting.”  The Court cited a few reasons for this, including debates behind closed doors and the use of a “reconciliation” legislative procedure that limited debate and amendments.  I could add a couple more:  passing a huge overhaul of a major system like healthcare without sufficient care (Nancy Pelosi’s famous, “but we have to pass the bill to find out what’s in it”) and slamming it through on a straight party line vote.  As the old car repair commercial used to say, you can pay me now (preventive maintenance, getting it right) or you can pay me later (repairs) and this law has been paying later.

But Roberts apparently does not want the ACA to pay too much for its repairs by returning it to Congress to get it right.  So twice now, he has essentially rewritten the bill to fix it himself.  In the first case, the Court having found that Congress lacked power to pass the ACA under its commerce clause power, Roberts reinvented its basis as a bill valid under the taxing power.  This time, he reinvented State Exchange (capital letters) to mean state and federal.

It is not the role of the Court to fix another branch’s mistakes.  So why is Roberts willing to do this?  I believe it is a misguided calculation that he has to engage in a little judicial activism in repairing the law in order to avoid a perception of even greater judicial activism by invalidating the law.  He seems to be so concerned about lowering the volume on controversial Supreme Court decisions that he is willing to be a judicial activist in order to protect the Court’s reputation against charges of judicial activism.  It makes no sense, in the same way that the officer who said “We had to burn down this village in order to save it” made no sense in Vietnam.

John Roberts turns out to be another disappointing judicial appointment for conservatives, moving strike zones, saying words have no obvious meaning, and rewriting the law to fix Congressional errors.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/25/why-has-chief-justice-roberts-moved-from-umpiring-to-batting-on-healthcare/

Rugged Individualism Is Exactly The Wrong Case for Obamacare (Forbes.com) June 15, 2015

President Obama has been heating up the rhetoric about Obamacare as the Supreme Court prepares to announce its decision on whether the whole program might collapse over illegal subsidies.   In a press conference, he meddled in the work of the judicial branch, saying the Court should never have taken the case in the first place.  The next day, he summoned up American rugged individualism in its defense, saying:  “The rugged individualism that defines America has always been bound by a set of shared values; an enduring sense that we are in this together. That America is not a place where we simply ignore the poor or turn away from the sick. It’s a place sustained by the idea that I am my brother’s keeper and I am my sister’s keeper.” I’m sorry, Mr. President, but America’s rugged individual—bounded or not– is the last place to look for defense of federalizing healthcare.

The idea of the rugged individual was captured in historian Frederick Jackson Turner’s “frontier thesis,” explaining how the American character had been developed battling the elements and conquering the territory of the American West.  The first use of the actual expression “rugged individualism” was by Herbert Hoover in his campaign for president in 1928, explaining why the great concentration of federal power built up during World War I should be returned to the people in peacetime.  He contrasted the American system of self-reliance and “rugged individualism” with the European systems of paternalism and socialism.

Yes, it is true that American rugged individualism is often accompanied, even limited, by something else.  But that something else is not federal mandates such as Obamacare.  Perhaps what Obama was aiming for, but missed, was what the French journalist and philosopher Alexis De Tocqueville observed when he visited America, noting that Americans were forever associating and helping one another, whether through churches or civic associations of every shape and form.  Even life on the American frontier involved a lot of collaboration, along with individualism.  But these were voluntary community efforts, a kind of public virtue, not statism.  Efforts by the state—such as Obamacare—are precisely the opposite of individualism.

Beginning with Progressivism and the New Deal, the modern welfare state became the alternative to rugged individualism, and Franklin Roosevelt’s “forgotten man” began to replace the “rugged individual” as the object of federal policy.   The two should ideally live alongside one another, if Washington leaders would allow room for both.  So, for example, even among the excesses of Lyndon Johnson’s Great Society, there would nevertheless be space for individual and corporate health care policies for rugged individuals, and then the safety net of Medicare created for the forgotten man.

But, alas, Obamacare neither sought nor found a balance between the rugged individual and the forgotten man.  It turned out that if you liked your policy, you probably could not keep it, Mr. Rugged Individual, as millions of policies became “illegal” because they did not cover everything Obamacare insisted upon.  Of course it’s hard to find balance when you ram through a massive overhaul of the health care system on a party-line vote, without a single member of the “other” party voting in favor.  So rather than creating two systems—one a rugged individual’s personal or workplace policy and the other a safety net for the forgotten man—Obamacare created one, large system, essentially federalizing healthcare.   This is not rugged individualism bounded by public virtue—this is a federal takeover, pure and simple.

While there is widespread agreement that individualism is part of the unique character of Americans, policymakers in Washington have been steadily killing it since the New Deal.  It would help if the President understood rugged individualism and then allowed it a place at the policy table, rather than continuing to suppress it in the quest to federalize everything from education to healthcare and the environment.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/15/rugged-individualism-is-exactly-the-wrong-case-for-obamacare/

Brace Yourself For The Most Important Supreme Court Case Of The Year (Forbes.com) February 27, 2015

On Wednesday, the U.S. Supreme Court will hear oral arguments in its most important case of the year, King v. Burwell.  The case is most obviously significant because it could invalidate subsidies for low income individuals covered by Obamacare in the approximately two-thirds of states that did not establish their own exchanges.  This in turn could leave millions of people essentially without healthcare, unless and until Congress or the states did something to repair the problem, all of which is being worked on now.

But at a more subtle level, this case is an important indicator of what the Supreme Court is willing to do (and not do) in an era of deeply divided government in Washington.  The question here is whether the Supreme Court should play the role of proofreader or auto-corrector when Congress legislates without sufficient care and is too conflicted to address the problem itself.  You would like to think that a sweeping change such as Obamacare was worked through with great care, including lots of drafting, testimony, amendments and compromise, all the hallmarks of good legislative work.  But if you think that’s how Obamacare was adopted, your memory is faulty.  The bill itself was massive (one version ran over 2400 pages, the final 906 pages), prompting House Speaker Nancy Pelosi’s plea:  “But we have to pass the bill so that you can find out what’s in it.”  And the most sweeping social program since the 1960’s was slammed through on a straight party-line vote, with no Republican support.

Even when a bill is passed, it’s just the beginning.  Various agencies then must adopt regulations and structures to implement the law (so far 10,000 pages and still counting).  And, of course, in this case President Obama has weighed in through executive orders, unilaterally (and probably illegally) changing and delaying aspects of the law.  Even Chief Justice Roberts took it upon himself in an earlier case to give the law an extreme makeover, transforming it from an unconstitutional penalty into a constitutional tax in order to save it.

So now the Supreme Court is faced with the clear provision in the law that subsidies are available to people who live in states with healthcare exchanges “established by the State.”  Since most states elected not to establish their own exchanges, the plaintiffs argue that no subsidies should be available in those states.  It has been described as a “glitch” or a “drafting error” by Congress.  And so, the argument goes, the Supreme Court ought to fix it, and simply declare that state-run exchanges really meant to include federal exchanges as well.   To refuse to do so would be, as New York Times commentator Timothy Egan put it, “one of the most brazen manipulations of the legal system in modern times.”

In fact, it is the other side that is straining to redefine clear terms.  Courts are bound by the “plain meaning” rule of interpretation:  unless a statute provides a specialized meaning, courts should apply the ordinary meaning of the word.  Clearly, if Congress meant something other than “established by the State” it could and should have said so.  And the obvious legal approach for any court to take in such a case is to rule that the law means what it says and send it back to the legislature if they want it to mean something else.  Courts are not legislators—as Chief Justice Roberts famously said in his confirmation hearing, judges are more like umpires, calling balls and strikes.

Ah, but here’s the problem.  By pushing the bill through without compromise or support from both parties, the bill lacks not only careful drafting but also bipartisan support.  That is the blowback from a party-line vote:  no one from the other side has enough ownership to help you fix it later.  It’s like that old car mechanic commercial:  you can pay me now (upfront, preventive maintenance) or you can pay me later (expensive, or in this case impossible repairs when it blows up).

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/02/27/brace-yourself-for-the-most-important-supreme-court-case-of-the-year/

Why Obamacare Is Still On The Legal Ropes After 4 Years (Forbes.com) August 4, 2014

The Affordable Care Act (ACA) is nearly 4.5 years old, yet it seems to have spent most of its life in one courtroom after another with its legal viability still hanging in the balance.  In a report issued last summer, the National Health Law Program had tracked 89 federal court challenges to the ACA.  And the recent decision by the federal D.C. Circuit Court of Appeals that subsidies under the law are only available in those few states that have developed their own health exchanges poses the greatest legal threat yet.  With two federal circuits reaching two different conclusions on that question, the ACA seems inevitably headed to the U.S. Supreme Court once again.

Some see Obamacare constantly brought before judges and find politics and judicial activism.  You may recall that President Obama himself jumped on that bandwagon prematurely, saying in 2012 that the U.S. Supreme Court finding the Act unconstitutional would be an “unelected group of people” turning to “judicial activism or a lack of judicial restraint.”  Ironically, in the view of many, Chief Justice Roberts ended up employing judicial activism, by reinventing a penalty into a tax, in order to rescue Obamacare on that occasion.  Columnist E.J. Dionne recently joined the chorus, calling the D.C. Circuit Court of Appeal decision on subsidies “extreme judicial activism.”  Of course one definition of judicial activism is quite simply a court decision with which you disagree, so all this hand-wringing must be taken with a healthy dose of salt.

In fact, I would submit that there are two very good reasons why Obamacare is still fighting for its life in the courts:  (1) It constitutes a complex and sweeping reform of one of our largest and most important social and business systems and, as such, (2) it was not enacted with sufficient care, debate and legal craftsmanship.

Obamacare is widely seen as the most sweeping social program since Medicare in the 1960s and Social Security in the 1930s.  As such, it also creates one of the largest government bureaucracies—at both the federal and state levels—seen in decades.  So, naturally, this was all done with great care, debate, compromise, amendment, and drafting over time, right?  We all know better.  One version of the bill ran over 2400 pages (the final weighs in at a mere 906 pages), leading to House Speaker Nancy Pelosi’s  clarion call in Washington-speak:  “But we have to pass the bill so that you can find out what is in it.”  And when this biggest and most important social legislation was finally passed, it was jammed through on a party-line vote, with no Republican support.

When Congress passes and the President signs a bill into law, most Americans fail to recognize that the legal work is only beginning.  Various agencies must then develop regulations and government structures to implement the law.  So far we have something over 10,000 pages (in very tiny type) of such regulation.  And then President Obama himself, through executive orders, has been unilaterally changing and delaying aspects of the law right along, arguing that more time is needed to draft and develop the implementing regulations and systems.

Is it any wonder, then, that Congress left a lot of clean up, and even correction of errors, now taken up in the courts?  As the old car repair commercial used to say, “you can pay me now (preventive maintenance) or you can pay me later (more expensive repairs).” If Congress had wanted to spend the time and bipartisan effort to get things right from the start, perhaps many of these questions would not have ended up in court.  Is it a tax or is it a penalty, for example?  In the end, Justice Roberts felt he had to rewrite the law to make that clear.  If Congress didn’t intend the subsidies to be limited to states that created their own exchanges, couldn’t that have been debated and clarified in a congressional committee, rather than in various federal district and circuit courts?

Unfortunately the most sweeping social legislation in 50 years is now getting the care and debate in courts that it should have received, but did not, in Congress.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/08/04/why-obamacare-is-still-on-the-legal-ropes-after-4-years-2/

Obamacare’s Inept Rollout Reveals What Makes Us American (Forbes.com) November 26, 2013

Former British Prime Minister Harold Wilson famously said, “A week in politics is a long time.”  How right he was.  A couple of weeks ago, Republicans were dead in the water because of the foolish government shutdown.  Now they have been resurrected by the ineptness of the Obamacare implementation and the Democrats are on the political ropes.

But conservatives could take longer-term advantage of a rare political opportunity afforded by the Affordable Care Act:  suddenly the average American, including millions of young Americans, has found out how it feels when the government takes away your liberty.  By declaring millions of health insurance policies illegal for not satisfying the particularized standards of the ACA, the federal government has deprived Americans of all ages of something very tangible that they valued, namely the health insurance policy that was meeting their needs.  In a moment of time, millions of Americans have learned what it means to lose your liberty, the freedom to continue to own the insurance policy you possessed and liked, to government over-regulation.

Just ask Steve Goldsberry of California, whose old policy is now illegal and the new replacement being offered will cost $6000 more.  Calling it a $6000 tax, Mr. Goldsberry understands that this is about liberty and choice:  “I had insurance that was adequate.  I got to choose.  Now I no longer have a choice.”  Pharmacist Cherie Nash-Smith says she will pay the penalty, if she has to, “if politicians keep shoving their health plan vision down my throat.”  Go to the website “mycancellation.com” and read some of the hundreds of letters angry Americans have shared.  The point is that the response is not just about incompetence or expense, it’s about having their right to choose, their liberty, taken away from them.

This is an important moment for modern American conservatism because personal liberty, which has always been the heart of the conservative philosophy, no longer resonates to so many Americans.  Liberty has become an abstraction, an ideal that is not real to twenty-first century Americans.  It seems especially foreign to younger people who have grown up knowing only big government and not appreciating the challenge it creates to liberty.  In a Pew Foundation poll last year asking whether more government was needed to address the problems facing our country, every age group but one said no.  But those under 30 said yes, we need big government to solve our problems.

So when government overreaches, conservatives need to connect that to a loss of personal liberty.  When Mayor Bloomberg wants to tell you what size soda you may purchase, it is not only silly, and ultimately according to a court unconstitutional, but it is a real example of how big government regulation infringes on personal liberty.   And that’s what Obamacare care has provided on a grand scale:  millions of Americans angry at government regulation taking away not just their insurance policy but their freedom to decide what policy to have.  Couples with no children are losing their insurance because it does not provide infant pediatric and dental coverage which they do not need.  Young males can’t keep their present policies because they do not have maternity coverage they don’t need.

Obamacare has become an unplanned national teach-in on government over-regulation and the loss of personal liberty.  I love the young woman quoted in the Los AngelesTimes who, after discovering a dramatic increase in her own health insurance rates, said:  “I was all for Obamacare until I learned I was paying for it.”  Yes, there are many lessons to be learned here.  Conservatives would be wise to stand aside and let the Obamacare implementation disaster unfold on its own, but they would also do well to connect the public anger to their core message of government overreach and the loss of personal liberty.

Link to Forbes.com op/ed:  http://www.forbes.com/sites/daviddavenport/2013/11/26/obamacares-inept-rollout-reveals-what-makes-us-american/