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I am totally disgusted, disappointed, angry, etc., at John Roberts! He PRETENDED to be "for the people" under the guise of representing the Christian and moral concerns of our nation, it's constitution, etc. I find him as deceitful as Obama, H. Clinton, and all the other so-called leaders who are ruling our nation at total taxppayer expense, with their greed for money, power and a socialistic government (government?????), totally for their benefit!
Hey anon, there are other people that inhabit this country other than Christians; this country is open to all religions, Christians just happen to be in the majority, but there are Jews, Moslems, Budhists, and many others as well including athiests. We all share the same freedoms, and we don't have to be Christians in order to do so. I will admit that being a Muslim would put you in Obama's inner circle, but it's not a necessity.
CONLON’S COMMENTS ON YESTERDAY’S U S SUPREME COURT’S DECISION RE AFFORDABLE CARE ACT
Chief Justice Roberts and the Majority of the Court decides that the Individual Mandates in Affordable Care Act (ACA) is Constitutional by considering the penalty, if a citizen does not obtain insurance, as a tax under the Tax and Spending Clause. The Court also decided that the Commerce Clause does not apply to not buying health insurance.
As a Washington D.C. attorney and a former candidate for the U S Senate for the last four months I am familiar with the ACA and the political issues of the need, as a Republican, to replace the ACA. See my comments on my website www.gregconlon.com and blog conlonpg.blog.com for my recommendations of how a national health care plan should be structured to not require an individual mandate.
The Supreme Court decision was issued yesterday by five majority justices announced by Chief Justice Roberts. It approves one of the key provisions of the ACA requiring an “individual mandate” for each individual who is not covered or who does not purchase a minimum level of health insurance. This conclusion was supported under the Tax and Spending Clause of the Constitution and not the Commerce Clause that most expected. A minority of four other Justices led by Justice Scalia issued a Minority Opinion that concluded that such an individual mandate was unconstitutional under both the Commerce Clause and the Tax and Spending Clause.
INDIVIDUAL MANDATE ISSUE AND DISCUSSION:
The parties suing the Federal government, comprised of several individuals and 26 different states, objected to the mandatory requirement of forcing all persons to maintain “minimum essential” health insurance coverage or be subject to a “shared responsibility payment” both explained in the ACA. Such payments would be considered a penalty when paid to the IRS with a personal income tax return and collected in the same manner as other tax penalties.
The parties suing the Government argued that this payment was unconstitutional because it did not come under either of the two clauses in the Constitution that the Federal Government argued applied. These two clauses are the Commerce Clause and the Tax and Spending Clause both contained in Article One, Section 8 of the Constitution. The Federal Government argued that the ACA was constitutional under both clauses so if it was determined that it was not constitutional under the Commerce Clause then it would be under the Tax and Spending Clause.
Most outsiders who followed the case were focused on the Commerce Clause and once the Court announced that the penalty was unconstitutional under the Commerce Clause they assumed that the entire ACA was unconstitutional. They were wrong. The Majority of the Court believed that the penalty was constitutional under the Tax and Spending Clause and therefore supported the entire ACA as constitutional.
The Commerce Clause as explained in the Opinion states “the power to regulate commerce presupposes the existence of commercial activity to be regulated.” The Court goes on stating that there normally must be an existing activity to be regulated. The “individual mandate”, however does not regulate existing commercial activity but forces individuals to become active in commerce by purchasing a product, here health insurance, on the grounds that failing to do so would affect interstate commerce. Interstate commerce is also a requirement of the Commerce Clause; absent interstate then only states can so regulate.
The Court went on to indicate that the Framers of the Constitution knew the difference between doing something and doing nothing. Doing nothing (not buying health insurance) would therefore not qualify under the Commerce Clause and therefore was deemed unconstitutional by the Court.
NECESSARY AND PROPER CLAUSE:
The so called Necessary and Proper Clause was addressed by the Court and determined that it also cannot be used to sustain the ACA as Constitutional.
TAX AND SPENDING CLAUSE:
This clause was turned to by the court to view the “individual mandate” as imposing a tax on those who do not buy the product (health insurance). The Court then stressed its mandates from a previous case that “every reasonable construction (of an act) must be resorted to, in order to save a statute from unconstitutionality.” The question that had to be addressed was whether imposing the mandate was a tax. The Court concluded that it could consider the individual mandate a tax under Congress’s power under the Tax and Spending Clause.
This conclusion then forced the court into a “catch 22” situation because if it is deemed a tax there is a law, the Anti-Injunction Act, that could cause a problem. This Act prohibits a person from suing the Federal Government on a tax matter unless he has paid the tax and is filing for a refund of the tax he argues is unconstitutional. Since the ACA tax does not become effective until 2014 the suit against the Federal government that the tax is unconstitutional would not be allowed at this time and therefore the Court could not use the Tax and Spending Clause to support the ACA. The Court overcomes this dilemma by using the Congressional term of a “penalty” in the ACA, rather than a tax, for purposes of complying with the Anti-injunction Act. This catch 22 resolution will be discussed for many years in the future as to whether it is a proper resolution of the dilemma between being a “tax” in one case to meet the Tax and Spending Clause and then a “penalty” to meet the Anti-Injunction Act.
CONCLUSION RE INDIVIDUAL MANDATE:
The Court’s majority opinion therefore concluded that the individual mandate requirement was constitutional under the Tax and Spending Clause, therefore deciding that the entire ACA is constitutional and need not be changed to be effective.
EXPANSION OF MEDICAID ISSUE AND DISCUSSION:
Another key provision of the ACA is the expansion of Medicaid, a joint Federal-state program. The cost of the current Medicaid program (the Program) for most states consists of almost 10% of their annual budget. The Program currently offers federal funding to States to assist pregnant women, children, needy families, the blind, the elderly and the disabled in obtaining medical care. The expansion of the Program provides for the first time Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. The best I can determine this is about $37,000 in income. This will add about 16 million adults not currently covered. The Program increases federal funding eventually to cover approximately 90% of the States cost in expanding the Program. The Act gives the Secretary of Health and Human Services the authority to penalize any state that does not choose to participate in the Program expansion by taking away their existing Medicaid Program funding. This would reduce the annual budgets of most states by about 10% and cause them to drop the present Medicaid Program. California I am sure is going to go along with the expansion but smaller states with even tighter budget problems may not. This is why many states have participated in the lawsuit against the government to eliminate the penalty in the ACA. According to public sources Missouri does not want to expand the program because eventually it would cost them $100 million for their portion and they do not believe they can afford it.
The Spending clause of the Constitution, the portion of the Tax and Spending Clause discussed previously, grants Congress the power “to pay the Debts and provide for …general Welfare of the United States.” The Court states that the Congress may use this power to establish cooperative state-federal Spending Clause programs assuming the States voluntarily and knowingly accept the terms of such programs. But “the Constitution simply does not give the Congress the authority to require the States to regulate.” When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. The Government argues the expansion of the Program is merely a modification of the existing Program and is permissible because the Congress reserved the right to alter, amend, or repeal any provision of Medicaid.
CONCLUSION RE EXPANSION OF MEDICIAID:
The Court decided that because the ACA is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133% of the Federal Poverty Level, it would not be a mere alteration or modification but is a dramatic change and thus violates the Constitution under the Spending Clause by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion of benefits.
CONLON’S VIEWS OF WHERE WE GO NOW?
As a former candidate for the U S Senate I advanced my ideas of a structure of a new health care system that could be used by the Republican Congress, if they get complete control of both houses and the White House, to replace the ACA without an individual mandate. These recommendations could be followed solely in the private sector and still provide most of the benefits now offered in the ACA. Some of the elements of this plan include tort reform, allowing interstate sale of health insurance, a means test, and a tax credit for the low income individuals who cannot afford to purchase health insurance otherwise. A more detail explanation of this plan is on my website www.gregconlon.com.
I believe that Chief Justice Roberts wanted the ACA changed by electing new congressmen and women rather than having the Supreme Court invalidate the Act when he indicated in the order the following:
“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
This statement is a rallying cry for the Republican Party to throw out enough of the opposition to gain control of the U S Senate, maintain control of the House and elect Mitt Romney as President. With that accomplished there will be no barriers to replace the ACA with a viable health plan that addresses the recognized needs of the day all done in the private sector.
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