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CONCEPTS OF FEDERALISM AND LIMITED FEDERAL POWERS EXPRESSED IN BOTH MAJORITY AND DISSENTING OPINIONS

by Sharon Rondeau

Did U.S. Supreme Court Chief Justice John Roberts write parts of both the affirming and dissenting opinions on the health care law?

(Jul. 4, 2012) — Directly after the U.S. Supreme Court’s ruling on the Patient Protection & Affordable Care Act (PPACA), Chief Justice John Roberts flew to Malta to teach a seminar at a castle he described as an “impregnable island fortress.”

Last Thursday, the court announced the majority opinion that the “penalty” included in the bill could be considered a “tax” and therefore is constitutional.

Constitutional attorneys and scholars disagree, and some have opined that without the Medicaid expansion mandate which the court ruled could not be forced on the states, the law cannot operate.  The ruling was initially expected to be released on Monday, June 25, but did not come until Thursday, June 28.

Today a writer at Salon.com has reported that a source at the Supreme Court advised him that not only did Roberts write the majority opinion, but also “much of” the dissenting opinion.

On July 1, CBS reporter Jan Crawford stated on “Face the Nation” that Roberts had originally intended to vote against all aspects of the PPACA but had “switched” his vote “to uphold the bulk of the law.”  CBS stressed that the dissenting opinion was “unsigned,” although the four justices’ names appear at the introduction to their opinion.

CBS also reports that “external pressure began to grow” on Roberts after he had decided to vote against the constitutionality of the individual mandate.

Salon states that Crawford’s report contended that the dissenting opinion was jointly written by the four justices whose names appear on it, although Crawford’s story, which does not indicate an update since July 1, states:

Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the court’s historic decision. He kept it for himself.

Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.

To which kind of pressure is Crawford referring?  Do the Salon and CBS stories actually agree?

It has been reported that in the weeks leading up to the announcement of the decision, people within the Obama regime were “threatening” the U.S. Supreme Court with the specter of “chaos” and delay in payment to providers treating Medicare participants.

Following the majority opinion that the individual mandate “may be” considered a tax, Associate Justice Ruth Bader Ginsberg wrote a dissent targeting “Chief Justice Roberts” on the Medicaid expansion mandate which he struck down with six other justices.

In the majority opinion, Roberts stressed the idea of federalism, which guarantees the states “a republican form of government” in Article IV, Section 4 of the U.S. Constitution.

On page 191, the dissenters wrote that “the Court…creates new constitutional questions” and “undermines state sovereignty.”

On June 15, Justice Ginsberg had stated that there was “sharp disagreement” among the justices and raised the question of whether or not the law could be considered on its separate points rather than as a whole which would stand or fall on the issue of the individual mandate.

Since Ginsberg directed a strong and lengthy dissenting opinion toward Roberts, who joined her and the other three justices in the majority opinion upholding the tax, was her opinion originally directed toward a five-justice majority consisting of Alito, Thomas, Scalia, Roberts, and Kennedy?

On the last two pages of Roberts’ opinion (pages 64-65), he states:

The Affordable Care Act is constitutional in part and unconstitutional in part.  The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause.  That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.  In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.  Such legislation is within Congress’s power to tax.

As for the Medicaid expansion, that portion of the Affordable Care Act violates the Constitution by threatening existing Medicaid funding.  Congress has no authority to order the States to regulate according to its instructions.  Congress may offer the States grants and require the States to comply with accompanying conditions, but the States must have a genuine choice whether to accept the offer.  The States are given no such choice in this case:  They must either accept a basic change in the nature of Medicaid, or risk losing all Medicaid funding.  The remedy for that constitutional violation is to preclude the Federal Government from imposing such a sanction.  That remedy does not require striking down other portions of the Affordable Care Act.

The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits.  The Court does so today.  But the Court does not express any opinion on the wisdom of the Affordable Care Act.  Under the Constitution, that judgment is reserved to the people.

The judgment of the Court of Appeals for the Eleventh Circuit is affirmed in part and reversed in part.

It is so ordered.

Roberts’ opinion does not contain a signature.

Was Ginsberg’s lengthy dissent originally the expression of the dissenters’ opinion?

Since the mandated expansion of Medicaid is now voluntary, at least 15 states have said they will not participate.

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