Thursday, June 28, 2012


It's been a couple of years since I commented on a political question here, and in general I intend to continue that. But I will say a few things about the Supreme Court decision today regarding the President's health care legislation.

> I'm greatly disappointed. Obviously you have your opinions, and mine is worth every penny you pay for it--but as a citizen (not, obviously, as a legal scholar)--I am appalled that this legislation was judged to be "constitutional." But I shouldn't have been surprised. This has been the trend in federal jurisprudence for many decades. Like many people, I was fooled into thinking we had better judges than we do. So it's good that the scales have fallen from my eyes, and those of others.

Now, some will say, wait--aren't you for health care? Of course I'm for everyone having health care. I am very much in favor of remedying the many problems. And it may be there are some elements of this law I would be in favor of. But there are--in my opinion--many problems with this, particular law, and as a citizen, I think the Constitution and the limits of federal authority should be respected. In my view, this law did not respect those limits.

And, yes, I'm aware a majority of the Supreme Court held otherwise. I respect their authority to hand down the decision. It doesn't mean I have to agree with their reasoning or result. And to the extent this law may lead to coercion of consciences, I am fully ready to object conscientiously and to pay the price of not obeying an unjust law.

That's what I said publicly about the HHS mandate, which arises out of this law, and that's still where I stand. They can send me to jail--I won't obey a law that violates my conscience! I won't force anyone else to participate in abortion, sterilization or contraception, and the government should not force me or anyone else to do so. 

> I can't offer expertise but I find the dissent's argument that the mandate shouldn't be deemed a tax to be persuasive. But I haven't read Chief Justice Robert's argument, so I'll concede he may have a reasonable one.

> I won't hold my breath to see if all those who thought a 5-4 decision striking down Obamacare would be horrible, are now bewailing a 5-4 decision upholding it. It was a bogus argument, simply part of a larger campaign to mau-mau the Court. Now, of course, those who tried to pressure the Court will scoff at the notion that the Court bent to such pressure. But, you know, if you make threats to hurt someone, and that person actually is hurt, it's perfectly reasonable to treat you as a suspect. So I think it's perfectly reasonable to wonder if the Court gave in to intimidation. It wouldn't be the first time. So all those who said they didn't want this process to be politicized have, in fact, contributed to that.

> It was probably unreasonable, given the long arc of our nation's jurisprudence, to expect the High Court to strike down this law. A lot of us were guilty of "irrational exuberance."

> I can't help thinking of all those who have said for many years that Chief Justice Roberts can be counted on to be a solid vote to overturn the infamous Roe decision mandating abortion on demand. One of the long-standing arguments people make for voting for a GOP candidate for President, no matter what else one may find objectionable about him, we can expect good nominees to the Court, who will oppose the Roe decision and similar extremism. And when folks pointed to Roberts and Alito as examples of "good" appointees (from the perspective of abortion law), I said, wait, we don't know how they'll rule on Roe. I was scoffed at.

Well, I think I was right.

Of course, the Chief hasn't voted to sustain Roe, either; so we wait. But I've made the point many times that the GOP shouldn't be seen as reliable on judges. After all, five of the seven justices who gave us the Roe decision were GOP-appointed. And when that atrocious ruling was upheld in 1992, all five of the justices who did so, were Republican appointed! (Including Anthony Kennedy, whose turn it was to be the heart-breaker that year.)

Someone said to me, today, "yes, but at least there's a chance Romney's nominees will be better than Obama's." And, I suppose you can say that. But I find that thin gruel. That's all I'll say on that.

> This isn't the end of litigation.

My understanding is that there are many other grounds on which the health care law can--and almost certainly will--be challenged. Some of those are probably working their way through the courts already. Some of them, I'm guessing, won't begin to be litigated until more of the law takes effect. For example, once the mandate--whoops, it's a tax!--actually begins to be applied, someone might be able to file a relevant lawsuit. That's not my purview.

> Remember the forced-contraception mandate--it's still alive.

I admit I was wondering, yesterday, if I'd have to explain this weekend why we were still facing threats to religious freedom. I.e., if Obamacare had been struck down, then the HHS mandate would fall with it. Instead, litigation against that outrage continues. And from what I read, and my layman's understanding, I think we have a case. But let's remember, the courts don't like to stand up to the other branches. We must keep that in mind.

> Remember it's God's world and God remains in control. If you wonder why God runs things the way he does, you are in good company. All of us at various points wonder. If this decision really bothers you, remember there are folks who wonder why God allowed them to get sick, or to be unemployed, or to be homeless, or to suffer persecution, or why God allows violent and depraved acts against the innocent. Put your unhappiness at God not giving you what you wanted from the Supreme Court against those "why God?" questions.


rcg said...

We vote for laws to do for us what we won't do for ourselves. All this decision says is that the Constitution allows for that. We surrender bits of our selves whenever we do this. If the law is amended to exclude abortion and abortion causing drugs would it be any better? We are upset that it will make us do something we don't like, but are willing to be forced to give money rather than willingly give help people who need it. And have a hierarchy for that, too. We will give money before we give our time, and time before we give our minds, and minds before we give our hearts. We wanted to buy the indulgence through taxes without investing the time to give properly and efficiently. And we would rather blindly support health programs than educate people to the conclusion of the choices they make well before they choose to kill a child. And we cannot bring ourselves to tell someone that we cannot continue as friends if it makes you think I can tolerate an evil act as a simply an alternative view of the universe.

We are upset that the Constitution won't prevent us from harming ourselves, when in fact it does not demand we do so. We simply lack the will to avoid harming ourselves. This is not temptation placed before us by someone else. We worked hard to build this mess. Now we are upset that it went exactly where we pointed it. We want to outlaw temptation because we crave approval and won't resist it on our own. The first gift, after Life, was the gift to choose freely and we scorn it because we don't want to go to God for the strength to chose the right thing. We are prodigal children gambling on the death bed conversion so we can throw our lives away and cheat our way into Heaven by tricking God into forgiving us at the last minute. How vain we are to be upset with this decision thinking we can barter bits of our souls everyday and that we will have the will to stop just before we have gone too far. How does a person develop, spiritually, when the 'choices' are either anything or nothing? Even if we don't kill the child are we maybe killing their souls?

We want to fit in, up to a point, and can't understand how this collection of breezes became a storm. Who keeps the Sabbath Holy instead of shopping all day? Who really fasts before Mass, or tries to cheat the clock? Who has the nerve to cross themselves before a meal in a restaurant? To skip the office lunch on Friday during Lent? Our souls were in tatters long before we got here.

Read the prayers, pray before bed and when you awake. Go to confession preceded by a sincere and prayerful introspection. Contemplate the lives of saints. Learn to defend the faith from small daily challenges, only then will you gain the strength to defend our Holy Mother Church when the barbarians are at the gate.

Simon said...

I lean toward the joint dissent too, although I find the criticism of the Roberts opinion overheated. I think, however, that you have to be careful in bringing up the DHHS mandate, which is an entirely separate issue.

You may have read Fr. John Trigilio's commentary (here, for example), which has been bouncing around the web, and which appears to base its harsh criticism of the court on a lengthy soliloquy about the DHHS mandate. That makes no sense. To be sure, I've faulted the bishops for their ongoing support of "healthcare reform" (i.e. greater federal government intervention in healthcare markets) because it seems obvious to me that the DHHS mandate is a natural and predictable result of a Democrat-controlled DHHS gaining the power to issue such regulations, rather than an aberration. It by no means follows from the statute, however, that DHHS must mandate contraceptive coverage—when I say that the latter is a natural and predictable result of the former, what I mean is that it is a possible result and one that can be predicted given the attitude of the left to contraceptives and the Catholic Church—and even if it did, I have never heard of a case in which the alleged unconstitutionality of an agency regulation was used to bootstrap an attack on the enabling statute with the proposed remedy being to strike the entire statute. And I cannot imagine such a case succeeding. The remedy in such a case—and this isn't such a case; those cases are still percolating below—would be to strike down the regulation. I find it mindboggling that Trigilio would fault the court in such strong language for failing to strike down the act on the basis of an entirely novel argument that was not pressed in this case nor, so far as I know, in any other case. Yet that is what he appears to be saying.

I'm not saying that you're doing the same thing as Trigilio. I'm just saying that we have to be careful to keep the two separate. The DHHS mandate is the DHHS mandate. Yes, if the court had struck down Obamacare, the DHHS mandate would have fallen. But it does not follow that if the DHHS mandate has to go, the court therefore has a moral imperative to strike down Obamacare, which rises or falls on its own merits.