Yes, Nancy, We are Serious

In October 2009, House Speaker Nancy Pelosi, astounded by the apparent irrelevance of a reporter’s question about the constitutionality of Obamacare, spoke the words that ricocheted off the Constitution and then around the world:

CNSNews.com: “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”

Pelosi: “Are you serious? Are you serious?”

CNSNews.com: “Yes, yes I am.”

Pelosi then shook her head before taking a question from another reporter. Her press spokesman, Nadeam Elshami, then told CNSNews.com that asking the speaker of the House where the Constitution authorized Congress to mandate that individual Americans buy health insurance as not a "serious question."

“You can put this on the record,” said Elshami. “That is not a serious question. That is not a serious question.”

She seemed to have been taken by surprise by the question in the chaotic hubbub of the announcement that the Senate might pass its version of the Patient Protection and Affordable Care Act (PPACA, or the ACA, or Obamacare, or Public Law 111-148). Or at least she was stunned by the idea that anyone would question the government’s “right” to conceive of and pass such a law. No one else was questioning the legality of such a law. All other questions patronized her alleged wisdom about its necessity.

Her flunky press spokesman (with the ironic title of communications director) simply repeated the answer, and shoed the annoying reporter away. But in the previous July, Elshami explained the reason why Rahm Emanuel wouldn’t be accompanying Obama to Russia.

White House Chief of Staff Rahm Emanuel met for about a half-hour Tuesday night with House Democrats as lawmakers try to craft legislation to reform the country's health care system.

"The goal is to get a bill done and signed into law," said Nadeam Elshami, a spokesman for House Speaker Nancy Pelosi.

Yes. Send in the thug-in-chief to apply some good-old Chicago-style behind-committee-doors arm twisting. Get that usurpation of individual rights passed with the least fuss and public disclosure. Then, as Pelosi would later say, we can find out what’s in it, as though she were a grandmother teasing children in an orphanage about the contents of a great big, brightly wrapped present deposited in the playroom by a groaning forklift.

In December, the Senate would pass its version by a vote of 60-39. The House would go on pass its version (amended) by a vote of 219-212. Obama would sign it on March 23, 2010, with a drooling press in attendance. Vice President Joe Biden would grace the event by calling it a “f***g big deal.”

Well, when Americans finally got to unwrap the present, they found a double-spaced, 2,700-page monstrosity whose chief attribute is compulsion, or government force, to purchase health insurance so that the government may regulate and ration it. The “individual mandate” would be enforced by the IRS and would result in penalties or even jail for those who refused to bow, Muslim style, to the Mecca of socialism. Non-purchasers of Obamacare via Medicare or other venues would pay what Islam calls jizya – a tax on subjugated infidels or conquered dhimmis.

Recall that pre-advertising segment of the Rocky and Bullwinkle show when Bullwinkle says, “Hey, Rocky! Watch me pull a rabbit out of my hat!” And he pulls out anything but a rabbit. Nothing but a series of fearsome, roaring animals. To Pelosi, Harry Reid, the White House, and every politician who wrote or contributed to one or more pages of the ACA, the American people are but one big collective Bullwinkle, and the thing they intended for us to pull out of the hat is Jabba the Hutt.

“Are you serious?” And now those words may come back to haunt Pelosi – even should the court merely strike down the individual mandate, if not the whole law.

Health and Human Services Secretary Kathleen Sebelius also had words of wisdom in relation to the ACA. I’ll bet that no one else knew that youth violence is a “chronic health issue” that can lead to asthma, obesity, or depression for "the youth who are involved.” Sebelius did not make clear whether she was speaking solely about the victims of youth violence or the perpetrators or both.

She will clarify later if she was speaking of the victims of youth violence, or of the youth themselves. Or perhaps she won’t clarify what she meant until the HHS publishes a 1,000+ page report at the end of the year on the relationship between violence and obesity, asthma, depression, and twenty pages of other conditions she didn’t have time to include in her speech, and how this discovery should be incorporated under the aegis of the Affordable Care Act. Only a knuckle-dragging, mentally retarded, “right wing” cynic would claim she was angling for new powers for her department and a justification to include “violence” as a medically treatable social phenomenon.

Call it the “violence panel,” which would have offices right next door to the “death panel,” just down the hall from the “disposable, cost-consuming elderly panel.” This new panel would also have as a neighbor a panel with no placard or number on its door, but rumor has it that it will house the offices of a select group of experts chosen to deal with recalcitrant doctors and patients who have opted out of or resisted the individual mandate.

Pelosi said it was “only fair” that they go to jail.

Violent youth who are obese, have asthma, are depressed and are otherwise deemed ill in the opinion of specially selected social workers with backgrounds in criminology, will be sent to special “health and joy camps” to work out their disabilities under the strict supervision of doctors and other medical personnel drafted into the “ready reserve,” detailed, I think, beginning on page 496 of the ACA, Title V, Section 5210.

Haven’t a number of dystopian novels been written about treating “violence” as a treatable disease or disorder? Burgess’s A Clockwork Orange comes to mind. Also, Huxley’s Brave New World, Levin’s This Perfect Day, and a number of other novels. There was also George Lucas’s first feature film, THX 1138.

I do not digress. Let no one say that Sebelius hasn’t a totalitarian frame of mind. Let no one doubt that Nancy Pelosi is of the same mind.

Fast forward to April, 2012. The Texas Tribune had the simplest breakdown of the sequence of events in the Supreme Court when it heard arguments for and against Obamacare:

Today (March 26): The court will consider whether the fact that a taxation provision in the Affordable Care Act doesn't go into effect until 2014 means the current legal challenge is premature. The justices have allotted 90 minutes for arguments.

Tuesday (March 27): The court will review the individual mandate issue and whether Congress has the authority to enact it. The justices have allotted two hours for arguments.

Wednesday (March 28): The court will review two legal questions. First, justices will consider the National Federation of Independent Business’ question of whether the Affordable Care Act can be enacted without the mandate. The justices have allotted 90 minutes for arguments. Then, they’ll take up the states’ question of whether Congress overextends its authority when it forces states to accept “onerous conditions that it could not impose directly by threatening to withhold all federal funding for noncompliance.” The justices have set aside one hour for this issue.

Solicitor General Donald Verrilli, charged with the task of defending Obamacare, did not do well on the second day. Although those familiar with the Court’s habits caution that the tone and content of questions asked by the Justices should not be construed as premonitory clues to how they will ultimately rule, the questions put to Verrilli were demonstrably harsh, nearly contemptuous, especially Justice Antonin Scalia’s. The Court will deliver its findings in June.

The remarks made by the Justices were a potpourri of positions for and against Obamacare, and especially about the individual mandate. As noted in my previous column, “The Court’s Mock Examination of Obamacare,” the Justices were questioning the beans they found in the government’s bean casserole. Not once did the concept of individual rights occur to them. See Politico’s recap of their questions here.

Then President Obama, obviously disappointed with Verrilli’s poor showing, opined about the Supreme Court, claiming that it dare not go against the wishes of Congress and the American people by declaring the ACA or any part thereof unconstitutional.

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

Every time I read that patronizing statement, one made with bared teeth, I’m reminded of Don Corleone’s policy of making his obstructers an “offer they can’t refuse.” It's the same offer he made to Americans.

The ACA was not passed by a “strong majority” either in the Senate or the House. In the House, the vote was 219-212. A “strong majority” would have been 319-112. And whether or not Congress has been “democratically elected” is open to question but is a moot point here, as is the whole question of whether or not a government can void a Constitution that guarantees individual rights over an issue it should have absolutely nothing to say about, such as the freedom to buy health insurance or not. For the moment, we’ll let all that go.

Linda Greenhouse of The New York Times, however, was equally miffed, not with Verrilli’s performance, but with the Court, and especially with Justice Scalia.

Nothing in the Supreme Court arguments in the health care case last week, or in the subsequent commentary, has changed my opinion that this is an easy case. It’s the court that made it look hard.

I don’t mean the torrent of wisecracks at the government lawyers’ expense from Justice Antonin Scalia, who despite his clownish behavior in channeling the Tea Party from the bench is surely smart enough to know the difference between broccoli and health care. Rather, I mean the tough but fair questions from the members of the court who actually seemed to be wrestling with the issues: Justices Anthony M. Kennedy and Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. The Affordable Care Act will be upheld if at least one of these justices is satisfied that the briefs, the arguments, and his own judicial perspective provide sufficient answers to the questions.

Scalia at least implied in his statement that he thought that health care was as much a commodity as broccoli or cell phones, a service or trade the same as the Internet or car repair garages. Greenhouse regards health care or health insurance as a “right.” Scalia was not being “clownish.” He was dead serious.

On Tuesday, April 2nd, Obamacare got another upbraiding by Judge Jerry Smith of the Fifth Circuit Appeals Court in Texas. Speaking for a panel of three judges that was hearing arguments about the status of physician-owned hospitals under Obamacare, he interrupted the government lawyer to ask if the Department of Justice endorsed the right of the Supreme Court to pass judgment on federal law. When Justice Department lawyer Dana Lydia Kaersvang answered in the affirmative, but began to qualify her answer, Smith interrupted her:

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.

Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.

That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.

Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –

Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.

Attorney General Eric Holder complied with the request on Thursday. Newsmax reported:

The attorney general wrote the letter after appeals court judge Jerry Smith in Texas asked for reassurances that the Justice Department recognizes judicial authority. Smith made the request after President Barack Obama said this week that it would be "unprecedented" for the Supreme Court to overturn a major law passed by Congress like the healthcare overhaul whose constitutionality it is now considering….

"The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed," Holder wrote.

"The department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other court to reconsider or limit long-established precedent concerning judicial review," Holder added. He said "the president's remarks were fully consistent with the principles" the attorney general outlined in the letter.

“At no point has the government suggested that the court would lack authority to review plaintiffs’ constitutional claims if the court were to conclude that jurisdiction exists,” Holder said in the letter drafted to Smith’s specifications. “While duly recognizing the court’s authority to engage in judicial review, the executive branch has often urged courts to respect the legislative judgments of Congress.”

That’s where the issue stands at the moment.

Professor Will Huhn at The Akron Law Café made some interesting observations about the Court and Obama’s verbal scowl. In setting up the argument that Congress has the constitutional power to enact economic legislation, he quoted Justice Kennedy’s query to Solicitor Verrilli:

At oral argument last week in the health care case Justice Kennedy made the following remarkable proposals about the presumption of constitutionality:

Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

The answer to both questions is NO. Justice Kennedy's proposed view of the role of the Judicial Branch violates the Separation of Powers.

The Legislative Branch enacts legislation. The Judicial Branch ascertains the meaning of laws and determines whether they are constitutional. In interpreting a statute the courts must defer to the intent of the legislature. The touchstone for statutory interpretation is "the intent of the legislature." Similarly, in assessing the constitutionality of a statute the courts must presume that it is constitutional.

It used to be that the Supreme Court recognized "economic liberty" as a constitutional right, and frequently struck down laws regulating employers and protecting workers under the theory of "economic substantive due process." That is no longer the case.

Huhn then lists a number of cases in which the Court upheld the government’s economic policies. Among them:

[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. United States v. Carolene Products, 304 U.S. 144, 152 (1938) (Stone, J.) (upholding federal law against challenge under Due Process Clause).

And,

We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (Black, J.) (unanimous decision) (upholding state law against challenge under Due Process Clause).

On the contrary, Professor Huhn, a meaningful separation of powers would complement the Separation of Church and State by separating the state from the economy. This would ensure the protection of individual rights not only in the realm of an individual’s beliefs, but in the realm of his material existence. This would establish a principle that would override the “knowledge and experience” of legislators – or their profound lack of same – and reflect the “necessary and proper” convictions of a Court charged with upholding a Constitution formulated to protect individual rights.

Lost in all the back-and-forth about the individual mandate, the lawful intent of Congressional legislation, or the intent or interpretations of the Court or the “social and economic beliefs” of its members, is the whole issue of individual rights. The Court’s position should be: An individual’s life is his own, he owns his own life, he rejects any claim on it by others, and does not make claims on the lives of others for any purpose whatsoever. His life is not the government’s or the majority’s to dispose of at will for any reason, regardless of whether he is in a market or out of it, whether he consumes cell phones or broccoli. Or buys or does not purchase health insurance.

Nancy Pelosi can put this in the record: The unconstitutionality of Obamacare is a very serious matter, indeed. Americans have had a chance to see what’s in it. What those who value their life, liberty, property and pursuit of happiness see is: death.

You can’t get more serious than that.