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Chief Justice Roberts: Hero, villain, scoundrel or rogue?
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No matter which, with his Supreme Court decision, Chief Justice John G. Roberts Jr. has given us an unprecedented opportunity to vote in November on an entitlement program called the Affordable Care Act. A vote for President Barack Obama is a vote in favor. A vote for Gov. Mitt Romney is a vote against. The importance and magnitude of this choice cannot be overstated.
Entitlement programs might very well be the Achilles’ heel of Western civilization. A few years ago, former Secretary of State Henry Kissinger concluded his presentation on issues that could result in future world conflicts by taking a dollar bill from his pocket. He held it up in one hand and proclaimed, “Entitlements! Europe has them; North America and South America have them; Russia and China do not.”
He then pointed to the dollar bill with his free hand and declared, “Because of entitlements, the retiree can say, ‘This is my dollar; I deserve it!’” As he switched the bill to his other hand, he shook his head ‘no’ and said, “But the worker can say, ‘No, this is my dollar. I earned it!’”
Richard O. Dolinar
He then asked, “How do we resolve this conflict other than in the streets, with civil disobedience leading to financial instability and, ultimately, a change in the world order?”
The advent of entitlements
How prophetic. Since then, Greece has had numerous riots, and Spain is experiencing civil disturbances over complaints about entitlements. Meanwhile, the unfunded liability for US entitlement programs is estimated between $80 trillion to $120 trillion.
Entitlements are government programs that provide benefits to members of a specified group. Medicare is an entitlement and not, as is commonly thought, an insurance plan. Insurance plans are contracts whereby one party guarantees another against a specified loss. The entitlements have no such contracts. Thus, the taxpayer has no contractual right to collect specific benefits from either Medicare or Social Security. This was decided in two Supreme Court decisions: Steward Machine Co. v. Collector of Internal Revenue, 301 US 548 (1937) and Fleming v. Nestor, 363 US 603 (1960).
Social Security was passed in 1935; Medicare is Title 18 of Social Security and was passed in 1965. In school, we were taught that Social Security was established because people could not be trusted to save money for retirement. Apparently, the government can’t either, as the astounding unfunded liabilities make clear.
But, was retirement the real reason for Social Security? The stock market had crashed in 1929, and by 1935 the economy was in a shambles. The concern was not how to retire, but rather, how to get people back to work. It was thought that by establishing Social Security the economy could be controlled and the unemployment problem corrected. Social Security would push people 65 or older into retirement, opening their jobs to younger, unemployed people. And by giving more money to these retirees, the government could stimulate the economy, in good Keynesian fashion.
The reasoning proved to be fallacious and, as with the Affordable Care Act, Social Security’s constitutionality was quickly called into question. And just as President Obama and others have done, President Franklin Roosevelt set out to intimidate the nation’s highest court into submission. Concerned that the Supreme Court would strike down Social Security just as it had the National Industrial Recovery Act on May 27, 1935, and the Agriculture Adjustment Act in January 1936, FDR initiated legislation on Feb. 5, 1937, that would allow him to “pack the court” with six justices of his choice. On March 9, 1937, he had a fireside chat on the radio to garner the country’s support.
His tactics worked and Associate Justice Owen Roberts caved. Roberts had previously voted against New Deal legislation, but he now supported it. On May 24, 1937, Social Security was declared constitutional.
Comparable strong-arm, backroom, politico-economic attacks were used to help pass Medicare (a “mere” 296-page bill) and have been well documented by Professor Charlotte Twight (“Medicare’s Origin: The Economics and Politics of Dependency,” Cato Journal, vol. 16, no. 3, www.cato.org/pubs/journal/cj16n3-3.html).
For example, Wilbur Mills, D-Ark., chairman of the powerful House Ways and Means Committee, did not allow any public hearings on Medicare in 1965. Meetings were held in executive session, with witnesses allowed to discuss only the technical aspects of the bill and not the ideas behind it. The media were excluded. Some urged “there should be open hearings and people with knowledge in our society on this subject should be given the opportunity to come before us,” but to no avail (Twight, p. 17). At no time were doctors asked to contribute to the discussion. President Johnson signed it into law on July 30, 1965.
History repeating
Space does not permit a review of how the massive Affordable Care Act, at more than 2,000 pages, was threaded through the eye of the legislative needle and became law on March 23, 2010. Suffice it to say, the techniques employed are considered by some to be as controversial as those noted above. For example, the huge bill was released only 72 hours before the congressional vote was called.
Up until now, the approaches used to further entitlement legislation have occurred primarily behind closed doors, away from the public eye. This is what makes Chief Justice Roberts’ decision so monumental. Now, for the first time, we the people, in the light of day, will be able to cast our vote on an entitlement program.
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- Richard O. Dolinar, MD, is a senior fellow with The Heartland Institute and a clinical endocrinologist specializing in diabetes in Phoenix. Disclosure: The opinions expressed in this commentary are those of the author and do not necessarily reflect the opinions of the publishers or editors of Endocrine Today.
Perspective
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Alan J. Garber, MD, PhD, FACE
Dolinar is correct that the Roberts court decision ruling that the ACA (Obamacare) is constitutional has given us the opportunity for a mass plebiscite on this act. While this may be a slender benefit from the decision, the legal reasoning of the decision confers a vast expansion of the government's power to compel individual behavior by calling virtually any action a tax. Since the ACA itself and its sponsors never claimed a "tax basis" for their actions, and even denied it to be a tax when questioned in public, it is difficult to understand post facto rationalization by the Supreme Court to avoid what would otherwise be a political confrontation. Since Marbury v. Madison in 1803, in which Chief Justice Marshall asserted for the Court the power to decide what is constitutional and what is not, the Court has had the power to do so with the assent of the people and the other branches of government. The Roberts decision diminished that power and simultaneously diminishes the Court's standing in the eyes of the people. By resorting to such sophistry, Roberts weakens the Court for the future and increases the probability that acts passed by Congress will be found constitutional, even if they violate basic rights of the minority. In short, the Chief Justice has undermined our rights in order to avoid a political battle, but creates another battle instead.
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