“NEGATIVE POLITICAL CONSEQUENCES”

by Sharon Rondeau

(Nov. 11, 2016) — On Thursday, in an interview with Maricopa County Cold Case Posse lead investigator Mike Zullo, PPSimmons News & Ministry Network (PNN) radio host Carl Gallups stated that emails released over the last five weeks by the open-government organization Wikileaks contain evidence that U.S. Supreme Court Chief Justice John G. Roberts was in some way pressured into supporting the “liberal” wing of the court to uphold a major provision of the Affordable Care Act.

Known colloquially as “Obamacare,” the “signature” health care law enacted in March 2010 without one Republican vote has since been challenged from many directions.  On June 25, 2012, the high court, with Roberts concurring and writing the majority opinion, ruled that the “individual mandate” requiring all Americans to have health insurance or pay a fine was constitutional if the fine were interpreted as a tax, an angle which interestingly had not been stressed during oral argument.

As a result of Gallups’s observation, The Post & Email conducted a preliminary search of the latest batch of WikiLeaks emails for references to Roberts, locating one dated June 2, 2015 with the subject line, “Re: King v Burwell,” the case which challenged the constitutionality of the federal health care exchange when the law referred to health-care exchanges “established by the state.”

As only 13 states and the District of Columbia set up their own exchanges after the ACA was passed, individuals in the remaining states seeking health-care plans could purchase them only through healthcare.gov, the “federal” health-care exchange.

Following the issuance of the Supreme Court’s first high-profile decision regarding Obamacare in National Federation of Independent Business, et al v. Sebelius in June 2012, CBS News’s Jan Crawford reported that Roberts, who wrote the majority decision upholding the individual mandate, had originally planned to vote differently.

Citing two intimate sources, Crawford told CBS anchor Scott Pelley on July 2, 2012, “…But as Roberts set out to write the court’s majority opinion…his views began to change.  He forged an alliance with the court’s four liberal justices, and crafted a decision upholding the law under Congress’s power to levy taxes.  That argument had gotten little attention and was uniformly rejected in the lower courts.”

Associate Justice Anthony Kennedy, often considered the “swing” vote on the court, reportedly attempted to convince Roberts to return to his original position that the individual mandate and its accompanying fine is unconstitutional.  In the minority’s dissenting opinion, Kennedy wrote that the majority had overreached its constitutional authority.

Even then, rumors swirled that Roberts had been the object of blackmail, pressure and/or some type of coercion by the Obama regime, although in her report, Crawford said, “We have no evidence that he (Roberts) was cowed by political pressure.”

In April 2012, with National Federation still before the high court, Obama made what many believe to be an unprecedented public statement cautioning the court that a ruling striking down the individual mandate “would be an act of ‘judicial activism’ that Republicans say they abhor.”  At the same time, Obama expressed “confidence” that “the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” although without a “yea” vote from any Republican.

On June 7, 2013, media personality Glenn Beck released a video in which he stated that in regard to National Federation, “Roberts was blackmailed at some point before the Supreme Court announced its ruling, then changed his vote to uphold it.”

Later that month, Rep. Mike Lee told Beck that the high court “rewrote the law in order to save it” in response to Beck’s question as to whether or not Lee thought Roberts had been “intimidated” into switching his position.

In June 2015, King v. Burwell was again decided in favor of “the government,” with Kennedy voting with Justices Roberts, Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor to, in effect, extend exchanges “established by the state” to the federal government. Of the decision, U.S. News & World Report wrote, “The ruling, the second case in which the justices have decided in favor of the Affordable Care Act, preserves benefits for an estimated 6.4 million Americans and deals a crippling blow to the law’s Republican opponents, who have attempted to undermine it since its passage in 2010.”

In what could be construed as a statement influenced by politics, the court’s majority concluded:

In the dissent’s opinion, Associate Justice Antonin Scalia, now deceased, concluded:

The June 2, 2015 email released by WikiLeaks was originated by Neera Tanden, President and CEO of the political action committee Center for American Progress (CAP), was discussing the value of the Supreme Court as a political issue during the presidential campaign.  Regarding the upcoming high court’s decision in King v. Burwell, Tanden originally wrote to Clinton campaign operatives Jake Sullivan, Jennifer Palmieri, and campaign chairman John Podesta, later adding Brian Fallon and Christina Reynolds:

I mentioned this to John some time back, but think it’s a bit more current now.  It is most likely that this decision has already been made by the Court, but on the off chance that history is repeating itself, then it’s possible they are still deciding (last time, seems like Roberts went from striking the mandate to supporting it in the weeks before). As Jennifer will remember, it was pretty critical that the President threw the gauntlet down last time on the Court, warning them in the first case that it would politicize the role of the Court for them to rule against the ACA. As a close reader of the case, I honestly believe that was vital to scaring Roberts off.

Tanden also referred to “negative political consequences” for Kennedy and Roberts were they to “rule against the government:”

In this case, I’m not arguing that Hillary spend a lot of time attacking the Court. I do think it would be very helpful to all of our interest in a decision affirming the law, for Roberts and perhaps Kennedy to see negative political consequences to ruling against the government.

Therefore, I think it would be helpful to have a story of how progressives and Hillary would make the Supreme Court an election issue  (which would be a ready argument for liberals) if the Court rules against the government. It’s not that you wish that happens. But that would be the necessary consequence of a negative decision…the Court itself would become a hugely important political issue.

At CAP Action, we can get that story started. But kinda rests on you guys to make it stick.

What do you think? If you want to proceed, we should move soon.

Let me know thoughts. And I’m happy to discuss.

Neera

As premiums under Obamacare have increased substantially since the implementation of the law with more increases on the horizon, President-Elect Donald Trump, who campaigned on a platform of repealing the law, along with a Republican Congress, is likely to repeal and replace the Affordable Care Act.

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