Transition, Introduction, SCOTUS and Obamacare

Welcome to the Transition! I’ve decided after about 10 years of sending email blogs that it was finally time to actually use new technology that allows me to maintain the security of my blog, but in a format that is more user friendly to the reader. I’ve received much response in terms and support and resistance to this decision. As a result, I expect to lose a quarter of my current recipient list due to this transition since you had to positively accept an invitation to gain access to the blog. Therefore, if you accepted the invitation, can you please send me a note at wonge02@gmail.com to inform me that you are still reading and I will thank you for doing so.

Not only will the blog template and location change here, but I’ve also decided to change the contents in this blog. I’ll still give comments on life’s happenings, views on current events and the highly popular Head Slapper of the Week. However, they will not all appear in the same blog; they will be broken up in a free-flowing format. I will send emails when new posts are available naming the contents of the blog so you can make the decision whether or not to make the effort to read the blog. As I try to do, I aim to serve. I’m currently debating whether I’m to allow comments on this blog, especially since I don’t want to have great political discord that publicly labels who said what comment. I would appreciate feedback on that issue in the “comments” to this post.

So I guess there is so much flux in this blog’s readership demos I should explain how I got the idea for the title of this blog, “Musings of Mellow Yellow.” Well, it’s an ode to Rev. Joseph Lowery. Rev. Lowery provided the following benediction at the current President’s inauguration in January 2009:

“Lord, in the memory of all the saints who from their labors rest, and in the joy of a new beginning, we ask you to help us work for that day when black will not be asked to get [in] back, when brown can stick around, when yellow will be mellow, when the red man can get ahead, man; and when white will embrace what is right. Let all those who do justice and love mercy say Amen! Say Amen! And Amen!”

As a man of peace who respects the Presidency, what else do I need to say?

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Today I will just quickly opine on my initial thoughts regarding the big news story this week, the Supreme Court’s (SCOTUS) hearings on the health care law or Obamacare.

According to my myopic understanding, the hearings will debate the following issues:

• Is the individual mandate that imposes a penalty for those who do not purchase health care a tax? The issue has to do with the Anti-Injunction Act, which dates to 1867. It says, “No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” Therefore, if the penalty imposed by the mandate is considered a tax, Obamacare is essentially legal and SCOTUS will probably leave it as is. If it is not a tax, then SCOTUS may go ahead and decide if the mandate and/or Obamacare as a whole is constitutional.

• Does the individual mandate (which is never directly labeled in the 2,000 plus page legislation) fall within the limits of the Commerce clause in the Constitution? Essentially, does the individual mandate that everyone buy health insurance fall within the limits that it is "necessary and proper" in order to carry out the changes in the insurance market, such as guaranteeing coverage to people with pre-existing conditions. The Commerce clause authorizes Congress' taxing power, in this case mandating citizens to buy health insurance or pay a fine.

• Is the individual mandate “severable” from the rest of Obamacare? If the mandate is not severable from Obamacare and the mandate is ruled unconstitutional, Obamacare will cease to exist and we are back to Square One. If the mandate is severable and is ruled unconstitutional, then we have end up with a real public policy debate of a whole lot of new regulation with no new way to pay for it.

• Should states be conscripted to pay for the expansion of Medicaid to uninsured adults? If upheld, we again have a real policy debate of a new mandate to the states without a new way (at the state level) to pay for it.

While many of my colleagues who oppose Obamacare believe that it will be overturned in June through a ruling of an unconstitutionality of the individual mandate and that since it is not severable, I’m not one of them. I’ll just say for now that while many think that Justice Anthony Kennedy is the swing vote on the issues in this case based on his previous jurisprudence history, I disagree. I tend to think the swing vote in this case in no other than Chief Justice John Roberts. Why? It’s based on my observation of his confirmation hearings and his previous history.

In particular:

• In his confirmation hearing, Chief Justice Roberts stated that he does not have a comprehensive jurisprudential philosophy. In fact, he explicitly stated that he did not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document"

• Chief Justice Roberts has shown a great inclination towards “judicial modesty” in pragmatically approaching different issues of jurisprudence. So while he has proven to historically show a deference to federalism in his rulings, he’s one that does not believe in “legislating from the bench” as he said in his confirmation hearing regarding the judiciary’s role in reviewing acts of Congress:

"The Supreme Court has, throughout its history, on many occasions described the deference that is due to legislative judgments. Justice Holmes described assessing the constitutionality of an act of Congress as the gravest duty that the Supreme Court is called upon to perform. ... It's a principle that is easily stated and needs to be observed in practice, as well as in theory.

"Now, the Court, of course, has the obligation, and has been recognized since Marbury v. Madison, to assess the constitutionality of acts of Congress, and when those acts are challenged, it is the obligation of the Court to say what the law is. The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism, that is certainly the central dilemma of having an unelected, as you describe it correctly, undemocratic judiciary in a democratic republic."

Thus, based on Chief Justice Roberts’s jurisprudential philosophy of calling “balls and strikes” and his history of promoting “judicial modesty” and respecting precedent, I’m thinking that he is the Justice to watch in this debate. In my myopic opinion, before the arguments are completed, I’m of the opinion that Obamacare will either be upheld in total or the individual mandate will be ruled in violation of the Commerce Clause, but severable from the rest of the law, leaving the country with a whole lot of new regulation that will be very expensive to implement. But we will see what happens.

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As a parting thought, I recently saw that Rick Santorum cussed out a reporter in public. As one who has gained much of his support from the evangelical and religious folk, all I can say is irony.