Thursday, June 28, 2012

Melissa Harris-Perry, MSNBC Host and Tulane University Professor, Claims ObamaCare Insurance Mandate 'Just Like Buying Groceries'

I noted previously that I'm being careful to learn about this decision and listen to what people are saying about it. Thus I'm literally taken aback by the comments from MSNBC's Melissa Harris-Perry.

Watch the clip at just after 1:00 minute. She says the individual mandate is a matter of personal responsibility.:
"Just like you have to take care of your own kids and buy your own groceries, you have got to buy health insurance because it is a matter of personal responsibility..."

That's a fundamentally ignorant interpretation of the Court's decision. Well, that, and an ideologically extreme interpretation of the Court's decision. Instapundit, as usual, has a great roundup of the reactions. I'm especially interested in the notion that Chief Justice Roberts' decision was a super savvy political ruling akin to the 1803 decision in Marbury v. Madison. That is, Roberts diced up his reasoning to allow the individual mandate to stand not on Commerce Clause grounds but because of the provision of the IRS penalty for failing to purchase individual insurance. That's a tax and it's in Congress's authority.

Here's Instapundit's initial reactions:
Text of the opinion is still not online. But here’s ScotusBlog’s summary:
In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding. . . . Yes, to answer a common question, the whole ACA is constitutional, so the provision requiring insurers to cover young adults until they are 26 survives as well.
So there you are. The Supreme Court has refused to save us from ourselves. The remedy now will have to be political.

FINALLY: Here’s a link to the opinion. I should also note that for those who thought the Lopez case dead, this opinion indicates that it remains very much alive. It appears that there may also be support on the Court for limiting Congress’s spending power. Has Roberts pulled a Marbury, appearing to give ground while actually laying the foundation for change in the future? Call that an optimistic reading.
The key points are (1) there were "not five votes" to uphold the law on Commerce Clause grounds; (2) the Court "has refused to save us from ourselves," i.e., the Court's not going to fix legislation that the political branches established; and (3) Chief Justice Roberts "has pulled a Marbury" by essentially paving the way for a repeal of the law when Republicans come to power. So again, as noted previously, Chief Justice Roberts in 2012, just like Chief Justice Marshall in 1803, is committed to maintaining the institutional legitimacy of the Court by protecting it from partisan attacks in one of the biggest cases since Bush v. Gore (2000). And Robert's is especially interested in preserving his natural court's legacy as a constitutional court and not a political one. In 1803 Chief Justice Marshall ruled that Section 13 of the Judiciary Act of 1789 was unconstitutional because Congress could not change the Article III powers of the Supreme Court (to issue writs of mandamus under the Judiciary Act of 1789). Only the Constitution determined the Court's original jurisdiction, and hence that portion of the 1789 Act was struck down as an unconstitutional grant of power to the judicial branch.

The decision was seen as brilliant politically, because it saved Marshall's Supreme Court --- which was essentially a Federalist court ruling against a Jeffersonian administration --- from being attacked as hopelessly partisan.

In today's ruling, Chief Justice John Roberts also split the difference, in National Federation of Independent Business v. Sebelius, and returned the question of a remedy for the law to the political branches.

So, returning to Professor Harris-Perry, it is exactly not the ruling of the Court that Congress can make people buy groceries. Justice Roberts didn't agree with the mandate and only upheld the law by way of upholding Congress's power to regulate and tax commercial activity in the marketplace.

Perhaps we'll see more commentary from Professor Harris-Perry. But if her initial take is any indication, she's badly reading way to much into the Court's ruling, and hence has over-interpreted any kind of legal mandate flowing from the outcome of this case. And remember, she's a political scientist!

See also this post at Instapundit: "HEALTHCARE HEADLINE: Obama Imposes Huge Tax On American Middle Class."