It's been a watershed week for Americans who pay attention to political forces undermining the US Constitution and the limits it is supposed to place on the federal and state governments.
The exposure came as ever-so-charming Senator Amy Klobuchar (D-MN) attempted to “grill” Supreme Court nominee, Judge Amy Coney Barrett on various articles or opinions Barrett has offered pertaining to American jurisprudence and statutes.
After a five-minute partisan monologue dripping with enough self-righteous condescension and emotional barbs to fill a soap opera script, Klobuchar attempted to mix her mendacious fearmongering over healthcare with an almost solipsistic attempt to imagine that some kind of enumerated constitutional power actually exists to see the feds provide or “regulate” healthcare. This brought her to say:
You have directly criticized (Chief) Justice Roberts in an article in my own state – in one of, uh, the Minnesota Law School journals, it was in 2017, it was the same year you became a judge -- and when Roberts writes the opinion to uphold the Affordable Care Act, you said he ‘pushed the Affordable Care Act beyond its plausible meaning, to save the statute.’ Is that correct?
And, after Barrett asked for and received clarification about the document from which Klobuchar quoted, and after Barrett also correctly noted that Klobuchar was wrong to describe Barrett’s criticism as focusing on Roberts as a person, when her comments were about ideas, the federal appeals court judge got into the substance of her reply.
That was just designed to make a comment about his reasoning in that case -- which, as I’ve said before, is consistent with the way the majority opinion characterized it – as a less plausible reading of the statute.
After more needless back and forth, Barrett had the opportunity to amplify, offering to Americans their own opportunity to remember the sheer, audacious, stunning manner in which Roberts and the Supreme Court majority twisted words in order to sustain Obamacare. The key action to which Barrett referred came as the 2012 challenge to the “Affordable Care Act” called “NFIB (National Federation of Independent Business) v Sebelius”, and those who are familiar with previous analyses of that case which we have presented here at MRCTV will understand the importance of Barrett’s point. She told Klobuchar:
What I said, with respect to NFIB versus Sebelius, is that the interpretation that the majority adopted -- construing the mandate to be a tax, rather than a penalty -- was not the most natural reading of the statute.
Which Klobuchar appeared to, once more, attempt to depict that as an attack on Roberts himself, despite Barrett’s clear point that she was noting the error of Roberts’ ruling not him as a person.
But the larger point is what is more important, that being that Barrett is precisely right to criticize this toweringly offensive bit of judicial dancing conducted by Roberts and the majority who ruled in the “NFIB” attempt to block the Obamacare mandate.
And for an easy understanding of that, I’ll refer you to the piece I wrote in 2018 covering how Roberts, Ginsberg, and the lefties on the court subverted not only the Constitution, but the meaning of words and honest dealing in what became the upholding of Obamacare’s mandate that American adults own health insurance.
Before the “Affordable Care Act” was passed in 2010, Obama, Pelosi, and many Democrats appeared reluctant to define the penalty for not buying insurance as a "fine,” and preferred the term “tax penalty.” But when the NFIB challenged the statute, Roberts and the lefties seemed to realize that if they considered the penalty a “tax”, then a 19th Century statute called The Tax Anti-Injunction Act would prevent the court from hearing it.
Which means we can take the opportunity offered by Klobuchar’s grandstanding to remind ourselves about what the Anti-Injunction Act does, and what that inspired Roberts and the leftist Justices to do in 2012 – what Barrett correctly found to be improper.
The Anti-Injunction Act prevents any citizen from bringing a legal challenge to a tax until after the citizen has paid it.
Since Obamacare was not implemented until 2014, no one had actually paid the tax in 2012 when Roberts and his pals wanted to hear the NFIB case. So, in order to hear it, he and the leftists framed the individual mandate as a “penalty.” This allowed the case into the court where, you guessed it, the just-formed idea of it as a “penalty” was promptly flipped, and, in the end, Roberts and the left labeled it a “tax” – which made it easy for them to vote that was a-okay to impose via the IRS.
That’s how the “individual mandate” – the core of Obamacare -- was “determined” by Roberts and the leftists to be “constitutional.” As I wrote in 2018:
Pretzel logic for everyone. Get it while it’s hot.
Since that time, the individual mandate has been found unconstitutional in a two lower courts, and the Trump Administration has removed it from enforcement by the IRS.
And the Trump Administration and 20 state Attorneys General have brought the ACA back to the SCOTUS to challenge the entire law, saying that the individual mandate and the whole statute are inseparable, and the Supreme Court will hear the case just weeks from now.
Which brings us back to Klobuchar and her evident, overwrought anxiety about the possibility of Barrett taking a SCOTUS seat.
Barrett clearly recognizes the unfounded nature off Roberts’ jurisprudential dance in the NFIB challenge to Obamacare.
And that ought to tell us something about Senator Klobuchar.
Meanwhile, we who watch can also learn that, despite Judge Barrett’s justified criticism of Roberts and her firm stand against Klobuchar’s childish “we can make words mean anything” make-believe, deeper anti-constitutional problems persist.
Those are huge, and, in part, include an idea on which Klobuchar and Barret both agree in the abstract: that there can be what they call "Super Precedents" in constitutional jurisprudence. Those would be court rulings that -- due to the idea of "stare decisis" or letting the decision stand -- are so old or unquestioned by the populace they just "can't" be overturned.
In fact, during their exchange, Klobuchar implied that these "Super Precedents" somehow take the place of what's in the Constitution, which is pretty darned ignorant, arrogant, and dangerous.
Then there's the politically popular notion that the feds can mandate what insurance companies must cover, and the added wonder of the feds offering “health care” to any American civilian.
There is absolutely no enumerated power in their “rule book” for either, and no "precedent" can make it so.
But we're on the brink of what appears to be a long career for future Supreme Court Justice Barrett, so perhaps she will speak about those sometime.
Goodness knows, it’s highly unlikely that Senator Klobuchar ever will.