Pro Logica

September 3, 2012

In the Aftermath of the AFCA Decision by SCOTUS

Filed under: Specific rulings of SCOTUS — Tags: , , , , — Ron Toczek @ 12:42 pm

The news sphere has been rife with comments about the SCOTUS decision to uphold the Affordable Care Act.  In a 5-4 decision, Chief Justice Roberts has been credited with the swing vote whereas many pundits were ready to give that position to Justice Kennedy.  So much for predictions.  Since this was an important milestone for health care here in the U.S. it was not surprising to see the number of news articles and blog posts which appeared–I know that I have only read a small portion of what is available.  For all the analysis, criticism and praise thrown out to the public, I am commenting here on three aspects of the ruling which, in my opinion, has received very little coverage:

  1. The ruling is very conservative, much more so than the dissenting opinion by the ‘conservative’ justices,
  2. The arguments against the forced expansion of Medicaid are specious, and
  3. The use of the word ‘liberty’ as a synonym for ‘freedom’ by Justice Kennedy.

(Before getting to the above three topics, I am expressing my disapproval of any simple majority vote being either an expression of democracy or an example of the rule of law–stated in a prior post—simply because one vote by one person is not enough to establish a law to be worthy of enforcement.  One can only marvel at the possible attempts to corruptively influence a single person to change their vote.  A 5-4 SCOTUS ruling, for or against, should always be declared  as favorable to the defendants of the suit or to the constitutionality of the law in question.)

1.   ‘Conservative’ in its adjectival sense expresses a desire to do things as they have been done in the past and there are many old sayings which attest to its virtue.  Here, its opposite is ‘innovative’ or ‘a desire to change from the traditional’.  Since new ideas and new gadgets are always arising and shortcomings of the traditional methods–usually due to unforeseen consequences caused by individuals trying to exploit the traditional for their own benefit, deficiencies from the expected public outcome of the traditional may occur and some innovative course of action may be necessary to correct the imbalance.  Being conservative means to weigh the innovations against their practicability and to guard against a hasty acceptance of the new before many of its unintended consequences have enfolded.  Many times, innovation wins out before a long enough trial period due to youthful exuberance for the new, necessity for an immediate solution, special interest lobbying or sometimes just plain ignorance, enough so that the new does not quite live up to its expectations necessitating further modifications or even some backtracking, all to be expected in a working republican government.  It is very disconcerting that a political party (the Republican Party) using the name of the classification of our government is actively rejecting the essential principle underlining republican governments, that of compromise among the lawmakers.

The oldest tradition applicable to a constitutional government comes from parliamentary law and basically says that the legislative body determines the law and that any judicial body can only determine that law’s constitutionality and specific applicability, in other words, a judiciary does not have the authority to make law; the purpose of the law and whatever its effects on the governed cannot be a consideration of the judicial body.  Essentially, this tradition can be restated as saying that the finding of a constitutional provision which allows the legislative act is enough to make it constitutional.  The dissenting opinion is relying upon the principle that finding a provision which might not justify the law is enough to declare such law as unconstitutional, a principle which is found nowhere in parliamentary law.  Chief Justice Roberts found a constitutional provision which allowed the mandate and being conservative in outlook made the conservative decision.  I point out again that for SCOTUS to enter a ruling stating that a Federal law is unconstitutional is an attempt to make law and by examining the law which authorized the establishment of the Federal marshal system one can see that it prevents the Judiciary from enforcing any of its rulings.

2.   The ruling concerning the Medicaid expansion is specious only because it differentiates between the methods employed by Congress to enact laws.   As I read the ruling, it would be allowable for Congress to rescind the old Medicaid law and substitute new provisions for Medicaid which exactly coincide with the new parameters.  This seems to set an artificial condition on Congressional methods for enacting laws–SCOTUS cannot really enforce any of its rulings.  As one can gather from the criticism of this aspect, Medicaid is a voluntary program for the States.

3.   Finally, the difference between ‘freedom’ and ‘liberty’, when talking politics, is the difference between individual and group action.  Every individual in a given society or culture has the freedom to obey or flaunt the norms or laws of their society or culture.  There may be consequences of that freedom, but the individual can accept those consequences.  The question of liberty does not arise until there is a subpopulation of some society or culture which considers itself distinct and separate from the present political entity and forms a goal of separating themselves from that ruling group.  Liberty in this political sense indicates that the group wants responsibility for its own laws and customs.  Revolutions are about liberty, not freedom; liberty is about groups, not individuals.  The question of viability, worthiness and morality of any revolutionary group are unrelated to the concept of liberty, contrary to most people’s expectations; not every revolutionary group has bettered the life of those people it purportedly represents.  Justice Kennedy, by using ‘liberty’ instead of ‘freedom’, had two aims: to rhetorically have the readers of the dissenting opinion associate his belief of the injustice of the mandate is on a par with the injustices of the British rule over its territories which later became the United States of America and also to mislead those same readers into thinking he has a valid argument but is nothing more than the freedom any individual already has to either obey or flaunt the law.



  1. I think one of the biggest things to get out of the ruling is the unchecked power of the supreme court. through it’s history it has slowly given itself the power to interpret laws as they see fit, and not how it is written. The fact that these big decisions are always divided by party lines is proof that they judge based on what they want and not what the law says. If the actual writing of the law meant anything, we would see many more decisions that were more unanimous or not necessarily always split by party lines.

    The Supreme court can now make things constitutional even if the words and/or the intent of the constitution says otherwise.

    Comment by Lee Weishar — September 4, 2012 @ 11:58 am

    • While what you say may be true in so far as the majority of the population believes, even many politicians, that belief is certainly not in the U.S. Constitution. Sad to say, most voters have not read the Constitution nor do they seem to have the reasoning power to logically follow its implications. We may fault the founders for this but not really since using the common language of the largely uneducated population of the times with that form of language’s more rapid evolution would certainly have an effect on the Constitution’s interpretation in later years. Even today, some of its current interpretations would not hold mustard in the early 1800’s.

      My biggest disappointment in this regard was President Obama’s comment on the McCain-Feingold ruling, something to the effect that, ‘Its not right’. Clearly, the president expressed his opinion that the McCain-Feingold Act was indeed constitutional. His proper reply should have been,”I have heard the Supreme Courts ruling and will consider it, but since the act is a Congressional law only Congress can change the law and I will enforce this law until I am directed by Congress to not enforce it” This is how the Constitution by its separation of powers can actually check the unconstitutional ruling of the Supreme Court.

      As you can see, the real problem of an unchecked Supreme Court lies with the elected officials and the voting population which is more concerned with party politics than anything else. I do not see this behavior as being, in any sense, patriotic. Like you, I am not a fan of the Supreme Court and many of my earlier posts will bear this out. The People of the United States of America, purported owners of the U.S. Government have ceased to be its owners at the present time.

      Comment by Ron Toczek — September 5, 2012 @ 1:59 pm

      • I agree. One of the main reasons why we are losing so many of our freedoms is because people are oblivious and don’t know what is going on. Where in the early days even the average person was studying what the government did. The Federalist Papers for instance was written for the average farmer, and they went through it. today the average joe wouldn’t understand what it was talking about.

        Comment by Lee Weishar — September 5, 2012 @ 3:04 pm

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