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Blog of Mass Destruction

Judicial Divisions Threaten Nation

By The Reverend Published: February 2, 2011

U.S District Judge Roger Vinson.

Florida federal Judge Vinson's ruling to appease Tea Partiers hopeful of dismantling federal government found here. The ruling is so radically biased that it even takes the time to please TP'ers by including a silly and inapplicable throwaway comparison to.....wait for it.....the original Boston Tea Partiers.

Just what we need......Tea Party Judges.

One of the clearest examples of how divided America has become is found in recent rulings by federal judges over the constitutionality of the Affordable Care Act.

Two federal judges have declared the legislation, as is, constitutional. Two others have ruled that it isn't. It seems unfortunate, but in our divided nation, it appears as if one Supreme Court Justice, Anthony Kennedy, will wind up deciding this complex issue. Kennedy is the lone "swing vote"......and I think that is even arguable.

Both of the judicial rulings against the controversial law focus on the "mandate" to purchase health insurance. The argument, if that's what it is, takes the position that the federal government cannot force an individual citizen to purchase this case health insurance.

Conservatives call this overreaching by the federal government, Tea Partiers call it a socialist government takeover.

But is it either?

My take.

From the moment Tea Party-motivated governors and state attorneys general began joining lawsuits to strike down the Affordable Care Act, I have stated repeatedly that the law would stand and not be struck down, even by the current conservative activist Supreme Court....the one which ruled on Citizens United. I still believe that Justice Kennedy will not side with the activists in this case, but I admit I could be wrong.

Problem is.....if I'm wrong....and Kennedy and the 4 Horsemen of the Activist Apocalypse rule that the individual mandate to purchase health insurance is unconstitutional.....then much of the American way of life will be left vulnerable to similar future cases.

As Jonathan Cohn lays out in this The New Republic article, if the federal government's health insurance "mandate" is unconstitutional, then Social Security and Medicare may also be the same conservative activist Court, to be unconstitutional as well. A government overreach, as it were.

With Social Security, employers are mandated to not simply deduct SS contributions from employees' paychecks, but to match those deductions using company funds. With the SS program, employers, it could be construed, are being forced by the government to pay for something they do not want to pay for. The argument could be that economic activity is an inalienable right, and because it is, the federal government has no right to demand that employers spend their private assets on stuff they would rather not.

With Medicare, the parallels with the Affordable Care Act are even broader.....

With Medicare, the government demands that people help finance the cost of society’s medical treatment through payroll taxes. With the Affordable Care Act, the government demands that people help finance the cost of society’s medical treatment either by paying for a reasonably comprehensive insurance policy or writing a check to the government.

The often-heard conservative rebuttal of the Affordable Care Act's "mandate" is that the government has no right to force an individual to buy health insurance. The bill, however, does not force anyone to purchase health insurance. Instead, the bill gives individuals the option of purchasing health insurance OR paying a tax penalty on April 15th if they don't.

I realize that in our current Tea Party dreamscape it seems as if all things to do with the government are up for grabs....but I'm not sure that even TP'ers would say that the government has no right to impose taxes on it's citizens. But again, I could be wrong.

If the government doesn't have the right to regulate the interstate commerce that pertains to health insurance and health care....then perhaps the government doesn't have the right to demand that "people help finance the cost of society's medical treatment through payroll taxes" in the Medicare program. After all, all employees are being forced to participate by paying for something which they may not want to pay care for seniors.

Here's yet another potential problem if the Affordable Care Act is found unconstitutional because of the individual "mandate"......

“A good analogy,” Yale professor Jack Balkin wrote recently in the New England Journal of Medicine, “would be a tax on polluters who fail to install pollution control equipment: They can pay the tax or install the equipment.”

Perhaps the EPA is also unconstitutional......a huge overreach by the federal government, as many conservatives argue. Perhaps the government has no right to tax polluters who refuse to purchase and install pollution controls. Maybe air quality for America's citizens is not within the purview of the "general welfare" of all Americans.

What's at stake with a potential Anthony Kennedy vote declaring the Affordable Care Act unconstitutional because of the individual "mandate" more than just short term political Tea Party gain by Republicans and the activist judges who love them.

What's at stake is much of the modern American way of life.

Other links on this topic.....Think Progress,
Ezra Klein
, Huffington Post



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