Two years ago 28 states (more than half) sued the federal government for exceeding its power by forcing the mandate that everyone in the United States buy health insurance or pay a stiff fine.

The Affordable Care Act survived as constitutional when Chief Justice John Roberts redefined the mandate as a tax (an argument consistently denied by proponents of the law) and thus the Supreme Court effectively made law, a function constitutionally left only to Congress in Article I.  This decision prompted 34 states to refuse to establish state exchanges when given a choice by the Robert’s Court. 

This defiance by the states, (“If you want it you create it.  We will have nothing to do with it.”) effectively left those in their states ineligible for federal tax credits allowed those states who had exchanges, thus the law suit forcing subsidization for all— even if the state did not authorize it.

That Justice Roberts would save the Affordable Care Act a second time and without a single constitutional argument, did not surprise most.  He wrote: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

He continued: “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”  Essentially, Congress meant to pass it therefore we will save it, even if unpopular in the states, poorly written, and of questionable constitutionality.  Again, no constitutional authority was cited.  Sadly that did not appear to matter to them.

The giant surprise was the 6-3 vote, particularly that of Justice Anthony Kennedy whose total about-face on the 2013 Court hearing on Obamacare, where he blasted Roberts for “judicial legislation” but now joined him in doing the same thing, is beyond comprehension.  Then he said that the court majority “regards its statutory interpretation as modest.  It is not.”

Then, noticeably disturbed by the ruling, added.  “It amounts to a vast judicial overreaching.  It creates a debilitated, inoperable version of health care regulation that Congress did not enact and the public does not expect.”  He called it “judicial legislation” and accused Chief Justice John Roberts of trying to “force on the nation a new act.”  Amazingly, in 2015 Kennedy joins Roberts in judicial legislation rather to have made Congress give clarity to the badly written Act.

Judicial activism is when a law of Congress is interpreted by the Supreme Court in such a way as to give it new meaning.  George Washington warned us in his Farewell Address of the inclination of government to do so. “Let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”

Usurpation, in his day meant twisting things around to extract meaning that was initially not there.  This is precisely what the majority on Obamacare did twice.

Judicial legislation or activism is not new.  The desire for the Court to “legislate” through decisions expressed itself more fully the last sixty years as it attempted to “right” perceived wrongs instead of sending the faulted legislation back to the legislative branch for correction by the peoples’ representatives.

By altering legislative law it has created much federal law and has moved into state prerogatives such as education, state residency requirements, and imposed federal standards of procedure on local police to name but a few.  Now it has not only entered the healthcare business but made it almost impossible to get rid of socialized medicine.

In broadening its power base, far beyond Constitutional restraints, it also has almost destroyed the idea of two co-equal governments, one federal the other state, known as federalism.  Moreover judicial legislation creates a “need” and appetite for additional judicial legislation.  God help us restrain this seemingly lawless court!!

We must return to our foundation the U.S. Constitution as written, without all the judicial or executive alterations that go beyond this document.  According to Article I Section I, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

There is no authority for either of the two other branches of government to make law—any law; and law made by Congress is specifically listed in Article I, Section 8 where 18 clauses identify the powers of the federal government.  So, even Congress cannot make any law they like.  The issue of health is not noted and is therefore, as per Amendment 10, entirely a state issue.  The Supreme Court majority ruling ignored this long-term clarity and instead chose, as they did in 2013, to violate the document they are charged with upholding.

Harold Pease

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