Written by Tom Fitton
’Robertscare’ Nightmare: Supreme Court Upholds Individual Mandate
As I’ve said many times, it can be dangerous business trying to read the tea leaves and guess a Supreme Court vote based upon questioning during oral argument.
In March many experts believed, based upon the questions asked by the justices, that the so-called “individual mandate” provision of Obamacare, which required Americans to buy insurance or pay a fine, would not be upheld. I have to admit, I myself thought this provision was in trouble.
But in a 5-4 split decision that sent shock waves through Washington, D.C., and around the country the United States Supreme Court largely upheld Obamacare on Thursday, including the individual mandate. ( You can read the opinions for yourself here 778.75 Kb .)
Of course, many people had their eyes on perennial swing voter Justice Anthony Kennedy, widely seen as the key to whether the law would survive. However, in a stunning development it was Chief Justice Roberts, appointed by President George W. Bush, who joined the liberal wing of the High Court to secure the victory for President Obama. I am as upset as likely you are about this.
(In a less surprising move, Justice Kagan also voted in favor of the law. As you know, JW uncovered documents suggesting then-Solicitor General Elena Kagan’s office helped craft the legal defense for Obamacare when she served as President Obama’s Solicitor General.)
Essentially, the majority of justices did some legal and constitutional legerdemain to change the individual mandate penalty into a tax in order to uphold the law’s constitutionality under Congress’ alleged taxing power, rather than the Commerce Clause.
(Not even President Obama himself agrees with this line of reasoning. Obama said publicly that the law’s individual mandate wasnot a tax. Read this interview with ABC’s George Stephanopoulos.)
Here’s the statement I offered to the press responding to the High Court’s decision:
This Supreme Court majority rewrote Obamacare and then upheld its constitutionality. This decision is monstrous and upends the constitutional limits on federal power. That the Chief Justice would join the Court’s liberal block to legislate from the bench is shocking. Instead of calling the law Obamacare, we can fairly call it “Robertscare.”
Justice Kagan’s controversial decision to participate in this case despite unanswered questions about her role in defending Obamacare while working in the Obama administration also taints the High Court’s decision.
The Court’s decision will contribute to the public’s concern that our government is out of control and acting without constitutional authority. The rule of law suffered a stinging blow today.
On February 13, 2012, Judicial Watch filed an amicus curiae brief with the High Court arguing that the “individual mandate” provision of Obamacare is unconstitutional – whether considered under Congress’ commerce power or taxing power:
Petitioners are trying to defend a provision in an act passed by Congress that exceeds its enumerated powers. Though Congress enacted this provision under the Commerce Clause, Congress’ power under the clause is not broad enough to compel Americans to engage in commerce by purchasing a particular product. Though Petitioners try to rescue the provision by arguing that it is valid under Congress’ taxing power even if it is invalid under Congress’ commerce power, a provision of an act that is not a tax may not be construed as a tax merely to save it from being declared unconstitutional.
Judicial Watch further argued that if the Supreme Court affirmed the constitutionality of the individual mandate, “it must be willing to hold that Congress’ powers under the Commerce clause are plenary and unlimited, for there remains no principled way to limit Congress’ power if it is stretched as far as Petitioners (the Obama administration) ask.”
(”Florida Federal District Judge Roger Vinson perhaps put it more colorfully when he struck down the law in its entirety last year. If the government can force American taxpayers to buy health insurance, it can also force them to decide “whether and when (or not) to buy a house, a car, a television, a dinner or even a morning cup of coffee.”)
A majority of the Court agreed with this analysis, but that isn’t what won the day, it was the fantastical tax argument concocted by the Chief Justice that saved Obamacare.
And, for now, it’s the law of the land.
Those seeking a silver lining in the seeming rejection of the notion that forcing you to buy something is within the commerce powers of Congress may also be disappointed. Roberts’ commerce ruling was not joined by his conservative colleagues, so, however laudatory, it may not be binding precedent and may not have force of law – despite the seeming support of five Justices.
Even if the commerce section of the ruling was binding, Robert’s tax analysis would give Congress arguably even more power to force Americans to buy and do things in a way that is antithetical to limited, constitutional government. At one point, Roberts suggests that it is obvious that Congress can tax you for not owning energy efficient windows? Really? If you know of any similar “tax,” let me know. And it certainly presents no real restriction to the federal government’s power to force you to do what it may want you to do.
If you think I’m overstating the remarkable confusion and danger of this decision, let me quote from the four dissenters:
We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty….Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry.
The majority’s attack on self-government endorses a bait-and-switch scheme that closes the loop on the constitutional corruptions of Obamacare – from Congress, to the Executive, to the Judiciary. As if to confirm the out-of-control crassness of the whole racket, President Obama celebrated his “victory” with a vulgar tweet referencing the “f” word.
But while this is certainly is a disappointment to those of us who objected to the monstrous threat to individual liberty that is Obamacare, the battle is not over.
For now, there is a lot of champagne popping going on over at the White House and perhaps a few toasts for the Obama administration’s unlikely hero, Chief Justice John Roberts. They call Obamacare a “great achievement.” I call it an unconstitutional disaster.
You can count on Judicial Watch to continue to investigate and litigate where and when we can to protect our citizens and constitutional government from Obamacare.
The Supreme Court’s Obamacare decision was the second of two major rulings this week. And the High Court did a bit better as far as the rule of law is concerned when it upheld a major provision of Arizona’s illegal immigration enforcement law, SB 1070 earlier this week.
The leftist media has chosen to focus almost exclusively on the parts of the law invalidated by the High Court, but I’d like to focus on the one key part left intact: Police officers in Arizona and around the country may now check the immigration status of individuals they arrest or stop for questioning whom they suspect are in the U.S. illegally. Here’s the statement I offered to the press emphasizing the positive:
This is a victory for the safety and security of Arizona and the nation. The Supreme Court held that local police can help to enforce immigration law by inquiring about immigration status. This sensible application of the law confirms that local law enforcement can use an additional tool to protect public safety. We can expect dozens of states to enact laws further empowering the police as Arizona did. The Obama administration should now focus on enforcing immigration laws rather than thwarting them.
Now this was not a universal, hands-down victory for those interested in upholding the rule of law. There are some aspects of SB 1070 that will not move forward as a result of the High Court’s decision, including a provision that would have made it a state crime for an illegal alien to apply or obtain a job, for example. But overall, the ruling is a validation that local law enforcement does have an important role to play in enforcing illegal immigration laws – which is what Judicial Watch has been saying all along.
As you will recall, Judicial Watch had previously defended the law on behalf of the Arizona State Legislature. Most recently we filed an amicus curiae brief on behalf of former Arizona State Senator Russell Pearce, author of SB 1070, and a separate brief on behalf of State Legislators for Legal Immigration (SLLI).The amicus brief on behalf of SLLI was joined by 29 legislators from 20 states.
In both briefs, Judicial Watch argued that SB 1070 utilizes the state of Arizona’s well-established police powers and therefore is not preempted by federal law as the Obama administration maintains. Here’s how we put it in both briefs:
S.B. 1070 does not regulate immigration or naturalization. It does not control who may enter the United States or the conditions under which lawfully present aliens may remain in the United States or become naturalized citizens. Nor does it purport to define any alien’s legal status or deport unlawfully present aliens from the United States.
It merely authorizes and directs Arizona’s state and local law enforcement officers to communicate and cooperate with federal officials regarding the enforcement of federal immigration law and creates disincentives for unlawfully present aliens who do not comply with federal law to enter or remain in Arizona…Therefore, this Court should reverse the Ninth Circuit’s decision and hold that S.B. 1070 is not preempted by federal law.
The Supreme Court ruling is a validation of this argument. But don’t expect the Obama Justice Department to start playing ball just because the Supreme Court says it must. The moment the decision came down, the Justice Department showed its hand with respect to how it plans to respond to the Supreme Court ruling. According to CNN:
Obama administration officials said Monday the federal government would not become a willing partner in the state of Arizona’s efforts to arrest undocumented people — unless those immigrants meet federal government criteria. And they said the administration is rescinding agreements that allow some Arizona law enforcement officers to enforce federal immigration laws.
(By the way, the Obama administration’s “criteria” for deportation continues to shrink. First it was “only” illegal aliens not convicted of “serious crimes.” Then, as JW uncovered, violent criminals were added to the “suspended deportation list.” And most recently, the president proudly announced, every single illegal alien under 30 who was brought here as a child will be allowed to stay.)
After the Supreme Court decision, the Obama administration also announced a new hotline where illegal immigrants can lodge civil rights complaints while simultaneously cancelling its 287(g) task force agreements with Arizona. (287(g) agreements allow local law enforcement agencies to establish partnerships with Immigration and Customs Enforcement to enforce illegal immigration laws.)
“The end of the agreements makes it that much harder for Arizona to carry out the surviving provision of SB 1070,” The Los Angeles Times reported.
Arizona Governor Jan Brewer said during an interview with Fox News’ Greta van Susteren, per the Times:
“This is politics at its best. It’s just unconscionable. What [the Obama administration] said to Arizona is, ‘Drop dead, Arizona. Drop dead and go away. We’re going to ignore you.’
“It’s almost become apparent that they can do whatever they darn well want! They don’t want to enforce their laws. They won’t let us help them enforce their laws,” she added.
The Obama administration’s political posturing notwithstanding, Governor Brewer called the ruling a “victory for the rule of law,” and said she would help ensure “the implementation and enforcement of this law in an even-handed manner that lives up to our highest ideals as American citizens.”
Although many of the provisions of SB 1070 will not be enforced, the provisions left intact by the lower courts are already working.
As noted by Fox News: “Though it was partially blocked in the courts, its enactment had an undeniable effect in Arizona by striking fear into the immigrant community. Illegal immigration in Arizona is estimated to have dropped from around 560,000 in 2008 to 360,000 in January 2011.”
And that was before this most recent Supreme Court ruling, which allows police officers to inquire about a suspect’s illegal immigration status. Let’s hope this trend continues and that other states follow Arizona’s lead.
The Supreme Court majority opinion, once again joined by the Chief Justice, was far from perfect. It was an assault on state sovereignty (see Justice Scalia’s groundbreaking dissent) that ought to be overturned by Congress or another set of sensible Supreme Court justices.
Again, in the meantime, your Judicial Watch will be there to confront the crisis caused by President Obama’s dictatorial amnesty program. We will fight to expose the lawlessness and fight to enforce the law.
I have more news to report this week regarding Judicial Watch’s historic nationwide battle for election integrity…
On Wednesday, together with True the Vote we filed a Motion for Intervention defend the State of Florida’s efforts to clean up voter registration lists against an Obama administration lawsuit. (True the Vote is a grassroots election integrity organization and a Judicial Watch client.)
If you’ve been reading this space over the last few weeks (or the news) you know all about what’s happening in this key presidential battleground state. Here’s a quick review. The State of Florida initiated a systematic effort to remove ineligible voters from voter registration lists after Judicial Watch filed a letter of inquiry with Florida election officials on February 6, 2012.
JW had conducted a thorough analysis of Florida’s voter registration lists and discovered some significant issues. (For example, Judicial Watch noted in 2009 and 2010 that 172,509 people died in the state but records showed that election officials had only removed 4,450 dead people from its lists. The numbers just didn’t add up.)
So we alerted Florida election officials to the problem and notified them that failure to maintain clean voter registration lists violates Section 8 of the National Voter Registration Act (NVRA). To its credit, the state responded quickly and took steps to alert county election officials about potential illegal voters on the election rolls.
And everything was going just fine, until the Obama administration stepped in and filed a lawsuit on June 12, 2012, asking a federal court to enjoin the state from continuing its efforts to cleanse voter registration lists of ineligible voters. (To repeat, the nation’s highest law enforcement agency wants Florida to stop making sure it registration lists are clean!)
Thankfully, this week a federal court shot down an attempt by the Obama administration to impose an emergency injunction barring the state from continuing its purge. As reported by The New York Times: “A federal judge on Wednesday rebuffed the Department of Justice’s emergency request to stop Florida’s attempt to remove people who are not American citizens from its voter registration rolls.”
The lawsuit, however, will continue. And Judicial Watch intends, if the court approves, to participate.
According to Judicial Watch’s motion, filed jointly with Judicial Watch client True the Vote on June 26, 2012, with the United States District Court for the Northern District of Florida, Tallahassee Division, Florida’s activities were consistent with the law:
[Judicial Watch and True the Vote] seek to enter this lawsuit in order to demonstrate that, not only are the State of Florida’s list maintenance activities valid, proper, and timely, but that they also are required under federal law. Intervention will ensure that the organizational interests of Proposed Intervener True the Vote and the rights and interest of the members of Proposed Intervener Judicial Watch, Inc. are adequately protected and preserved.
As reported by The Associated Press, the State of Florida had ordered the removal of 53,000 dead voters from its lists while identifying an additional 2,700 non-citizens registered to vote. Press reports suggest the number of non-citizen voters in the state could be as high as 180,000.)
By any objective analysis, there can be only one reason why Obama administration officials would object to Florida’s efforts to clean its registration lists – they want more illegal voters to vote! Especially people (i.e. illegal aliens) they believe will vote to re-elect the president.
And this is not just happening in Florida. A recent report by non-partisan Pew Charitable Trusts (Pew) published in February 2012 indicates that approximately 24 million active voter registrations in states across the country – or one out of every eight registrations – are either no longer valid or are significantly inaccurate!
For this reason, Judicial Watch is focusing a great deal of its attention on pushing forward its large-scale, nationwide 2012 Election Integrity Project.
According to a comprehensive Judicial Watch investigation, in addition to Florida, a number of other states also appear to have problems with inaccurate voter registration lists, including: Indiana, Mississippi, Iowa, Missouri, Texas, Ohio, Pennsylvania, West Virginia, Alabama, and California. We have put election officials on notice in these states that they must maintain accurate voter registration lists consistent with Section 8 of the NVRA or face litigation to enforce the federal law.
And on June 11, 2012, we made good on this promise when Judicial Watch (along with co-plaintiff True the Vote) filed a federal lawsuit against the State of Indiana for failure to comply with voter list maintenance provisions of the NVRA. (J. Christian Adams, a former civil rights attorney with the Department of Justice, is of counsel to the groups on these legal actions. The groups are also represented in Florida by the firm, Radey, Thomas, Yon & Clark.)
There is now no doubt in my mind that the Obama Justice Department is hostile to the idea of clean and fair elections. It is shameful that the Justice Department is now in court trying to stop Florida from fulfilling its legal obligation to remove non-citizen, ineligible voters from the voting rolls. (Not to mention its efforts to stop voter ID laws in South Carolina and Texas.) We look forward to defending the voting rights of our supporters, the rule of law, and election integrity from an unprecedented attack from this politicized Justice Department.
And so does True the Vote.
“According to polls, most Americans agree that Florida should be making efforts to ensure people who are not eligible to vote are kept off of the voter registration rolls. Not only is this common sense, it is what the law requires. It’s disappointing that the Justice Department is more interested in taking extreme legal positions than protecting the integrity of the 2012 elections,” said True the Vote President Catherine Engelbrecht in a press statement.
Judicial Watch and True the Vote are facing extremely powerful forces in our efforts to fight for election integrity, including the full weight of the Holder-led Obama Justice Department. (Click here to read more.) I encourage you to support our cause!
(I’ll address the Holder contempt vote next week!)
Have a wonderful Independence Day!
Judicial Watch, Inc., a conservative, non-partisan educational foundation, promotes transparency, accountability and integrity in government, politics and the law. Through its educational endeavors, Judicial Watch advocates high standards of ethics and morality in our nation’s public life and seeks to ensure that political and judicial officials do not abuse the powers entrusted to them by the American people. Judicial Watch fulfills its educational mission through litigation, investigations, and public outreach.
The motto of Judicial Watch is “Because no one is above the law”. To this end, Judicial Watch uses the open records or freedom of information laws and other tools to investigate and uncover misconduct by government officials and litigation to hold to account politicians and public officials who engage in corrupt activities.