By Monica Frede

I’ve heard that there is a “war on women” sweeping across the plains, and the Republican Party is to blame. Conservatives such as Rush Limbaugh and Wisconsin Governor Scott Walker have taken it upon themselves to attack women, but in this election year, the liberals have conveniently brought this to the nation’s attention. President Obama loves women. He’s on our side. He understands us.

I do agree that there is a war on women—but with an opaque enemy.

The Paycheck Fairness Act, legislation reintroduced to both houses in April, addresses male-female income disparity in hopes of correcting erroneous discrimination against women in the workplace. The bill would provide easier options for women who are targets of wage discrimination, such as disclosing salary information with co-workers. The bill also requires employers to prove that any wage discrepancies are due to business requirements and job duties of those affected employees.

The bill quantifies a common statistic that for every dollar earned by a man, women earn just 77 cents. President Obama called the Paycheck Fairness Act a “common sense bill.” As common sense as operating the federal government on a budget?

Christina Hof Sommers wrote an article in the New York Times on September 21, 2010 making the argument that this bill contains many holes. She explained that women make different career choices than men, and many women chose careers that provide more flex time and work-lifestyle balances, and also chose work locations closer to home, schools and day care. Working women balance the priority of their family and their work, and oftentimes family trumps career.

She goes on to write:

The problem is that while the debate proceeds, the bill assumes the answer: it would hold employers liable for the “lingering effects of past discrimination” — “pay disparities” that have been “spread and perpetuated through commerce.” Under the bill, it’s not enough for an employer to guard against intentional discrimination; it also has to police potentially discriminatory assumptions behind market-driven wage disparities that have nothing to do with sexism.

I would not want to work for a company that monitors my biological clock. I would not want to have a conversation with my manager during a yearly salary review in which he must justify his choices despite (or because of) my sex. I’d like my work to speak for itself. Just like men, I should be paid for my worth, not the writing on the wall.

You want to close the pay gap? Teach women to be indispensable. Any good employer will chase a woman down the hall if she turns down the offer at the conference table because she knows she can get a better offer somewhere else. Employers are funny like that— they want the best talent working for them. How’s that for empowerment?

But while President Obama touts that the Paycheck Fairness Act can quell gender justice, he ignores the single largest wage disparity against women: unemployment. In April, the unemployment rate hovered at 8.1%. The economy added 115,000 net new jobs, while the labor force shrank by 342,000 people in the workforce.

The Wall Street Journal printed a disturbing chart last week, charting the U.S. civilian labor force participation rate, which has been on a sharp decline in the last 3 years. Currently the civilian labor participation rate is at 63.6%, the lowest it has been since December 1981. The Wall Street Journal explains that some of those 342,000 workers are older workers, struggling to find opportunities that match their experiences and skill set, or second household earners, altering the structure of their household due to a lower income.

How many of those 342,000 workers are women? I don’t know, but I can guess. Let’s say 40% of those workers are women. This means that approximately 137,000 women have given up looking for a job, and they don’t intend to search again until economic conditions improve. Some of those women have master’s degrees. Some of those women are second-income earners for their families. Some of those women make up the twenty-something population that is desperate for independence and thirsty for a successful career.

I’m confident the Huffington Post will report on the tragic story of a single mother who survives off her weekly unemployment check because she has given up looking for a job, or the young female professional who cannot afford to pay for her contraception now that she must compete against hundreds of other graduate students for the one open position at the local law firm.

After all, no greater battle exists for a woman then to be turned down post-interview, and no greater pay gap exists than between the employed and unemployed.

On a recent episode of This Week, George Stephanopoulos painfully agreed with Mitt Romney’s statistic that 92.3 percent of all job losses since President Obama took office have occurred to women. Stephanopoulos spoke to Treasury Secretary Timothy Geithner who called the statistic “a ridiculous way to look at the problem,” but then went on to explain that the statistic is “technically accurate.”

Geithner’s uncomfortableness during that interview would be a slap in the face to females. The political party that has produced Code Pink and the National Organization for Women have remained silent on the unemployed female population. It’s as if the liberals don’t support all women.

I read Sarah Palin’s biography, Going Rogue, after her Vice Presidential run in 2009. She wrote honestly and transparently, leaving no details of her high school and early political career out. She played basketball in high school, hunted, raised five children, and took on the Republican establishment that had controlled Alaska’s government for generations—and she won. She changed diapers in the governor’s mansion between meetings. As a candidate in her first political race, she drove across the state, going door-to-door and introducing herself to voters, all the while her youngest children slept in the back seat of the family car. This is a strong woman. Mama grizzly never sounded so cool, and hockey moms were never so boss.

But shortly after Sarah hit the national scene, the liberal media went apoplectic. She’s incompetent, she’s stupid, she has an illegitimate child, she buys expensive clothes, she wrote a few sentences on her hand prior to taking the stage at a 2008 Tea Party convention. The media collectively gasped at what she wrote: “Energy…tax cuts…lift American spirit.”

Liberal women everywhere were outraged at the thought of Mrs. Palin as President of the United States. Helen Thomas, former Whitehouse Correspondent, wrote that it would be a “tragedy” if Palin ran for President. Noeme Emery wrote a Weekly Standard article in 2008 detailing some of the feminist’s outrage against Palin:

“Can someone please tell me what the hell happened?” pled Michelle Cottle of the New Republic, as Sarah made landfall…”A slap in the face to all women,” Cottle called it, especially to “any woman who seriously supported Hillary in this race.” Much more was coming, in much the same tone. “I find it insulting to women, to the Republican Party, and to the country,” said Sally Quinn in a Newsweek/Washington Post blog. In the Baltimore Sun, Susan Reimer found Palin’s selection “insulting on so many levels” that she barely could name them. Ruth Marcus, reading from the same cue cards, sputtered in the Washington Post: “I found Palin’s selection…insulting.” Google the phrase “Palin’s pick is insulting to women,” and you come up with 943,000 entries.

Yes, the horror of it all: witnessing a woman, lacking blue blood, political connections or Sandra Fluke-like organizational sponsorships, rising to the heights of American politics on assiduousness and gusto. Thank goodness feminists fight diligently against such females. We wouldn’t want young girls receiving mixed messages—you can grow up to be anything you want, except a conservative woman.

Instead, our young girls are told they should emulate Sandra Fluke. Ms. Fluke spoke before the House Democratic Steering and Policy Committee on February 23, 2012. Her testimony lamented on the egregious economic burden placed on female law students at Georgetown Law who must pay for their own contraception. Here are a few of her comments:

“Without insurance coverage, contraception, as you know, can cost a woman over $3,000 during law school. For a lot of students who, like me, are on public interest scholarships, that’s practically an entire summer’s salary. 40% of the female students at Georgetown Law reported to us that they struggle financially as a result of this policy.

“One told us about how embarrassed and just powerless she felt when she was standing at the pharmacy counter and learned for the first time that contraception was not covered on her insurance and she had to turn and walk away because she couldn’t afford that prescription. Women like her have no choice but to go without contraception.”

A woman has no choice? She is forced to “go” without contraception? I’m sorry, I think I just stepped into 1851.

Sojourner Truth, a woman born into slavery in 1797 but gained her freedom in 1827, became a well-known anti-slavery speaker. She gave a speech at the 1851 Women’s Convention in Akron, Ohio, later titled “Aint I a Woman?” The attendees at the convention did not want her to speak. Rumblings erupted in the crowd as she took the stage. “Don’t let her speak…it will ruin us. Every newspaper in the land will have our cause mixed up with abolition…and we shall be utterly denounced.”

Despite her critics, Truth’s speech proved powerful— leaving the female audience stunned and speechless. Here is an excerpt from her speech:

“Why children, if you have woman’s rights, give it to her and you will feel better. You will have your own rights, and they won’t be so much trouble. I can’t read, but I can hear. I have heard the bible and have learned that Eve caused man to sin. Well, if woman upset the world, do give her a chance to set it right side up again….And how came Jesus into the world? Through God who created him and the woman who bore him. Man, where was your part? But the women are coming up blessed be God and a few of the men are coming up with them. But the man is in a tight place, the poor slave is on him, woman is coming on him, he is surely between a hawk and a buzzard.”

At a time in our country when women’s suffrage began to gain traction, Sojourner Truth looked beyond the disparateness of society to the core of every woman—she has the potential to fix the world. Whether in the board room, in the governor’s mansion, or at home with her children, women succeed on the merits of their ability, not on the accommodation or patronage of her government or her employer.

We don’t need acts of congress to create our futures. We don’t need biased media telling us what women we should support and which we should despise. We don’t need handouts in order to avoid responsibility. Women are smart, and we will fight for our liberties.

Liberty produces all kinds of women — especially the kind that win the war.

The Liberal press and blogosphere is absolutely insane over the recent Obamacare oral arguments before the Supreme Court. Apparently a day to digest the argument has given them enough time to conjure up enough vitriol to make a Spike Lee tweet look trivial. On one article on DailyKos, the writer used the term “radical” to describe the Supreme Court ten times in five paragraphs indicating that writers on DailyKos are in sore need of a thesaurus. The New York Times ran an article declaring “Conservative Judicial Activism Run Amok” because some Justices had the audacity to insist the government articulate a cogent limiting principle on Congressional power under the Commerce Clause (note: they really couldn’t). Echoing those same sentiments, Jonathan Chait, in the New York Times Magazine declared that this limiting principle- something apparently foreign to Liberals- was “disturbing.” And never one to be quiet in any area, apparent Supreme Court expert Paul Krugman chimes in with his editorial titled, “Broccoli and Bad Faith.” Here, he claims the Justices either don’t understand or choose not to understand how insurance works. He then somehow likens the argument to the privatization of Social Security, a concept which Mr. Krugman and company either do not understand, or choose not to understand. At least SALON did not attempt to approach their analysis from some feeble attempt to be cerebral and simply declared this limiting principle concept “stupid.”

Of course, before a decision had been rendered or an opinion published, the Liberals have resurrected their attack on the “activist” Roberts Court. This would appear to be a classic Liberal oxymoron since many of these same writers were recently railing against the Court’s “originalist” thought and concepts like “strict construction” and such. Because they believe the results will not fall in their favor, the Court is now suddenly “political” and “activist.” Perhaps, a better word word be “principled, but then again I forgot that to a Liberal, the word “principle” is foreign. I found it funny that one editorial theorized that if they rule against the mandate, it will go down in history as one of three bad decisions by the Roberts Court- it, Bush v. Gore and Citizens United. Apparently this writer was too busy wiping the froth from his mouth to consult a history book since four of the current Justices, including John Roberts, did not decide Bush v. Gore. Like principles, Liberals never let history get in the way of their narrative.

One of my favorite moonbat Liberals- E.J. Dionne of the Washington Post- claims in his analysis of the severability issue that the Court was “acting as an alternative legislature.” Of course, when they struck down state abortion laws in 1972 they were just doing their job admirably. I read the transcripts and listened to the audio again of that argument thinking I had missed something. Nope! What I heard was a Supreme Court grappling with the issue in a series of “what if” questions that ultimately led back to: “Its back to you, Congress.” But, Dionne hears otherwise leading him to conclude that if the Court strikes down the mandate, it will be akin to a “judicial dictatorship.” These are strong words coming from a defender of a law with numerous DICTates from on high. He then extends the argument outward and concludes that the Court’s line of questioning proves why no one should “cater to the hard core conservatives.” If I am hearing correctly, if someone believes in limited government, they should be dismissed out of hand. This is strange coming from a Liberal who prizes diversity- except in thought, it appears. Which leads me to ask Mr. Dionne: Who is being the dictator now?

Then there are the Liberal attacks on Solicitor General Verrilli. Because of a few coughs and a sip of water, Liberals are pulling him over the coals. Should Obamacare fall, all fingers will be pointing at him. Obviously, Verrilli, like the challengers prepared and held mock courts and anticipated these questions. Half of them were in the almost record number of briefs filed. These questions did not come out of left field. The broccoli analogy is nothing new nor is the one about the forced purchase of American cars. John Roberts actually gets added bonus points for creating the cell phone analogy. But then again, there has to be a scapegoat ignorant of the fact that this was just a bad law from the start.

This gets to the gist of the Liberal frustration with Verrilli. His only articulation of a limiting principle was regulations that had no nexus to the Commerce Clause. Well, duh! Verrilli could not articulate a principle because he knows that if the mandate is upheld, there will be no limiting principle. Hence, Verrilli had nothing to really defend in that line of questions. It would be like Jeffrey Dahmer’s defense attorney trying to explain the severed head in the refrigerator. Except that lawyer could always use an insanity defense. Verrilli could not. Under the circumstances, Verrilli did an admirable job. His argument- and honestly the best he could do- was like a .150 hitter (his argument) going up against the Cy Young award winner (the Constitution).

Likewise, I find it reprehensible that the RNC would actually doctor Supreme Court audio to make a political point in an advertisement. In case they were asleep that week, there is an effort to televise Supreme Court arguments that the Court has thus far repelled. This slimy use of the audio should be enough reason NOT to televise the Supreme Court. They made the audio available the day of the arguments instead of waiting a week, which is their normal custom. Even that proved too much of a temptation. Imagine if there was video. While the Left is slamming the Court for playing partisan politics, the RNC then uses the Court for political purposes. Two wrongs do not make a right, especially considering that all eyes and ears were on the Supreme Court this week as they argued a case of profound Constitutional importance. This merely sullied the whole process and the RNC should be ashamed of itself as should they who got a little giggle out of the advertisement.

It is obvious that the Left is oblivious to any thought other than their own which, in their minds, must be correct. That is why they today, using every apparatus of the media, are in a state of shock regarding the very real possibility that the poster child of the Obama Administration may be in trouble.No one knows which way this case will be decided despite all the hand-wringing on the Left and the fist pumping on the Right. Too many times I have heard Justices argue a conservative viewpoint, then come to a liberal decision. Regarding the mandate, we don’t know if the whole law must fall or even if the Supreme Court itself will adequately articulate a “limiting principle” on Congressional power under the Commerce Clause. But, I do know today just as I knew in 2010 that this mandate was an overreach of Federal power. To paraphrase a famous Supreme Court quote from the past, “I can’t define Congressional overreach, but I know it when I see it.” As for the Liberals out there, another Supreme Court quote seems appropriate: “Three generations of imbeciles is enough.”

I’ll leave further commentary to our excellent lawyers, but here’s the video:

The CNN legal correspondent’s comments included the following:

This was a train wreck for the Obama administration. This law looks like it’s going to be struck down…All of the predictions including mine that the justices would not have a problem with this law were wrong.

…The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides, all four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were — they did not meet with their success with their colleagues.

I’ll leave further commentary to our excellent lawyers, but here’s the video:

The CNN legal correspondent’s comments included the following:

This was a train wreck for the Obama administration. This law looks like it’s going to be struck down…All of the predictions including mine that the justices would not have a problem with this law were wrong.

…The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides, all four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were — they did not meet with their success with their colleagues.

By Matt Rooney | Cross-posted at SaveJersey.com

Tomorrow is it, Save Jerseyans! Three full days of ObamaCare hearings will commence before the U.S. Supreme Court just days after the second anniversary of the bill’s passage.

Another big story out there today, as I’m sure you’ve heard by now, is former Vice President Dick Cheney who underwent a heart transplant this weekend at age 71. This interesting coincidence compels your Blogger-in-Chief to pose a similar question to that which I asked back when our own U.S. Senator Frank Lautenberg (D-NJ) underwent cancer treatment:

Would a less-affluent senior citizen heart patient than Dick Cheney be alive today if ObamaCare had dictated his or her fate?

Read More →

(H/T: Instapundit) So, Politico publishes this story called “Four hard truths of health care reform“ – which is Politico’s way of saying ‘Obamacare has been an unmitigated disaster, but we’re going to try to spin it as well as we can anyway’ – and there’s two reasons why the tone of said story is amazing in its effrontery. The first reason is the way that it presents the aforementioned ‘hard truths’ as if they had just only now been revealed unto the populace, instead of being pretty much known all along. Don’t believe me? Take a look: below is each ‘hard truth’ Politico documents.

Read More →

(H/T: Instapundit) So, Politico publishes this story called “Four hard truths of health care reform“ – which is Politico’s way of saying ‘Obamacare has been an unmitigated disaster, but we’re going to try to spin it as well as we can anyway’ – and there’s two reasons why the tone of said story is amazing in its effrontery. The first reason is the way that it presents the aforementioned ‘hard truths’ as if they had just only now been revealed unto the populace, instead of being pretty much known all along. Don’t believe me? Take a look: below is each ‘hard truth’ Politico documents.

Read More →

By Monica Frede, Board Member, Editor

Reprinted here with permission of FI and the author

Earlier this week, Cardinal Timothy Dolan, President of the U.S. Conference of Catholic Bishops, penned a letter in response to recent visits by White House officials to the group of Catholic Bishops. In an effort to soothe the fiery debate ignited in recent weeks due to the Obama Administration’s mandate on private insurers providing its customers contraception coverage, the church leaders and White House staff discussed “the options.” Dolan’s letter, addressed to his Conference of Catholic Bishops, reaffirms the unapologetic position by the White House:

How fortunate that we as a body have had opportunities during our past plenary assemblies to manifest our strong unity in defense of religious freedom. We rely on that unity now more than ever as HHS [Department of Health and Human Services] seeks to define what constitutes church ministry and how it can be exercised.

The HHS seeks to constitute church ministry and how it can be exercised? This untoward conversation greatly concerned Dolan when White House officials further clarified their position:

At a recent meeting between staff of the bishops’ conference and the White House staff, our staff members asked directly whether the broader concerns of religious freedom—that is, revisiting the straight-jacketing mandates, or broadening the maligned exemption—are all off the table. They were informed that they are. So much for ‘working out the wrinkles.’ Instead, they advised the bishops’ conference that we should listen to the ‘enlightened’ voices of accommodation, such as the recent, hardly surprising yet terribly unfortunate editorial in America. The White House seems to think we bishops simply do not know or understand Catholic teaching and so, taking a cue from its own definition of religious freedom, now has nominated its own handpicked official Catholic teachers.

Even though these conversations existed within the walls of the Conference of Catholic Bishops’ Washington D.C. offices, Dolan makes it clear why the contraception mandate should concern all of us:

They know that this is not just about sterilization, abortifacients, and chemical contraception. It’s about religious freedom, the sacred right of any Church to define its own teaching and ministry.

With a President and his Administration who are not concerned with the fundamental rights granted to our religious organizations— because to do so would require a pause, for a few moments, ruminating the original intent of the U.S. Government, which we can all agree is not going to happen— the argument must come to fruition from citizens leading laborious debates rooted in limited government and individual freedom.

It is no surprise that the White House believes themselves to be more enlightened than this 46-year old institution that has driven humanitarian efforts alongside past and the present Popes. An institution as grandiose as the government, capable of altering school lunches while juggling CEO compensation plans, vehicle greenhouse gas emission standards and plastic bag usage, surely can deliver the exceptional alternative to the Catholic Church.

It is the very fact that we have allowed our government to take on the role of god that it believes it is god.

In his Letter from a Birmingham Jail, Martin Luther King, Jr. wrote, “History is the long and tragic story of the fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups are more immoral than individuals.” The distorted control we have granted to our elected officials has existed for some time, peaking in our present scenario of an entitlement, welfare-laden state, leading directly to the throne of federally-funded morality (or immorality).

But what we also have today is an opportunity to reshape the debate. The fact that Americans are debating whether the federal government should require private, non-profit and religious organizations to provide contraception to individuals is both good and bad. The argument is good because people who question the acts of their government are people who have the potential to react to unjust laws. The argument is bad because we must entertain the argument at all. King wrote:

[T]here is a type of constructive nonviolent tension that is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, we must see the need of having nonviolent gadflies to create the kind of tension in society that will help men to rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. So, the purpose of direct action is to create a situation so crisis-packed that it will inevitably open the door to negotiation.

Tension exists today— from Sandra Fluke’s passionate testimony pleading for financial provision from the government to support the co-ed lifestyle, to the Susan G. Komen Foundation entering the stage of public disapproval for its decision to cut its voluntary donations to Planned Parenthood (only to reverse course), to the Obama Administration defunding the Embryo Adoption Awareness Campaign in lieu of a “lack of interest” from the public— and we are talking.

Every enactment of an Obama Administration law and regulation supplies the Conservative aggregation a fresh opportunity to create tension, but we should approach the theatre of thought with the simplicity of the facts, rather than the subjectivity of public opinion.

After all, opinions change. Truth does not. King reminds us that “human progress never rolls in on wheels of inevitability. It comes through the tireless efforts and persistent work of men willing to be coworkers with God, and without this hard work time itself becomes an ally of the forces of social stagnation.”

Monica Frede authored this article and works together with Ed Willing on the board of Founders Intent. Reprinted with permission of FI and the author.

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Founders’ Intent.org is dedicated to the education and awareness of local and federal government policies which results in a stronger, independent local government and a limited, constitutionally-sound federal government.

Perhaps the most surprising aspect of this series of cases before the Supreme Court is their willingness to rule on the power of Congress to expand the right of “poor people” to health care benefits under Medicaid. The aim of theory at stake is to put limits on the power of Congress to spend money on public programs. It has only twice taken on the issue with no definitive application of the theory advanced and practically every year, someone or some state attempts to force the issue only to be rebuffed by the Supreme Court.

Specifically, the 26 states that have signed onto the litigation are arguing against the so-called coercion theory. This deals with the criteria set out in federal law that states must comply with in order to receive federal funds which is exactly the case here with Medicaid funds. The states argue that without constitutional limits, the Federal government’s mandates could be so onerous as to threaten the financial ability of a state and, as a result, their sovereignty is threatened. A decision in favor of the states would, in the practical sense, place limitations on Congress on what they could do under the Spending Clause. As the parameters for Medicaid coverage are expanded under the dictate of federal mandates, a state’s budget must necessarily expand also since even if the federal government increased their contributions, it would not be enough to adequately cover all the people dumped into Medicaid.

The coercion theory first entered the Court’s lexicon in 1937 in response to Roosevelt’s New Deal legislation. Then, the Court stated that it would not determine when “pressure turns into compulsion, and ceases to be inducement.” The next such attempt to revive the coercion theory was in response to federal highway funds. In 1987, South Dakota contested as “threat” by the federal government to reduce federal highway funds to states that failed to increase the legal drinking age to 21. Then, a Court generally favorable to federalism challenges from the states, decided nevertheless that the threatened reductions- 95% of what would have been normally due under the guidelines- was so minimal that it did not rise to the level of compulsion and was, instead, an inducement. And certainly receiving 5% less of what you were counting on may actually be a quite significant dollar amount. That was highway funds in the case of South Dakota and in Obamacare, we are talking about much larger sums and, perhaps, more onerous conditions.

Opponents of Obamacare lost their cases before the lower courts in this case, although the Circuit Courts, relying on more recent Supreme Court cases, found that the the Court had at least recognized some validity to the coercion theory being a threat to the federalist system established by the Constitution. The problem, as they saw it, was the Supreme Court never actually applied the limits of the theory. The lower courts stated that when an entity had a choice, there could be no coercion. To support that finding of “choice,” the courts ruled that (1) states were warned from the outset that there could be changing conditions, (2) the federal government will bear the bulk of the cost of the expansion of Medicaid, (3) the states will have more than four years to make a decision whether to comply or opt out, (4) states can use their own taxing authority if they do not like the terms of Congress, and (5) HHS was granted authority to decide whether all or only part of federal Medicaid dollars can be withheld. Taken together, the lower courts decided this was not a case of coercion/compulsion, but one of inducement.

But just like their acceptance of the AIA argument, their decision to take on this issue is equally important. It could be that this Court sees Obamacare as the perfect vehicle to tackle the coercion theory and to definitively articulate that point at which “inducement ceases and compulsion begins.” As one can surmise, the ramifications of any decision would have huge effects on any number of federal revenue sharing programs outside the health reform context. Highway funding, education dollars, and just about any program where the federal government provides funds in whole or part to be administered at the state level could be potentially impacted.

Further surprising that the Court accepted this aspect of the case is the fact that unlike the mandate question, the lower Circuit Courts were not split on this issue nor was their disagreement. Their was recognition of this amorphous coercion theory, but it never extended beyond that except in the more-favorable-to-opponents-of-Obamacare 11th Circuit. Even there, when they applied this coercion theory, they determined that it was not coercion for the reasons cited previously. In effect, it was considered yet another dead issue as concerns Obamacare, like the AIA issue explained in part 1. Unlike the AIA, which could stop challenges to Obamacare dead in their tracks (until 2015), this argument goes to the opposite extreme. Lets just assume that the Court determines the AIA does not control here and they then reach the issues of mandates and this aspect. Leave the mandate question out of the equation for a second.

A decision in favor of the government- in effect, affirming the lower court findings- would, at the least, leave the issue open for another day or, at the most, there would be essentially no federal program where coercion theory could be applied. It would be a huge expansion of the authority of Congress to attach stipulations on the receipt of federal funds under the Spending Clause. Medicaid is, by far, the largest such program meeting these definitions. It could potentially be a stake in the heart of coercion theory. Florida, the lead state here, asserts that “the ACA threatens states with the loss of every penny of federal funding under the single largest grant-in-aid program in existence- literally billions of dollars each year- if they do not capitulate to Congress’ steep new demands.” The fact that states can opt out of Medicaid is precluded by the new requirements.

One needs to question why the Supreme Court would revive this issue in the absence of Circuit Court disagreement. To state the stakes are high one way or the other would be a gross understatement. The states that are advancing this case do so at great risk actually. Should the Court decide against them in this case, there is virtually no other area where the states, in order to receive their share of federal revenue funds, would not become essentially subservient to that federal government’s whims. This also illustrates what happens when a government transforms society into one of entitlements. It illustrates the call for fundamental entitlement reform outside the judicial process where it rightfully belongs. Should the states prevail, it is a victory for federalism and state’s rights. But even a defeat can be transformed into a public relations victory against an expansive federal government and bureaucracy which is a winning talking point for any prospective Republican candidate. It is quite possible that Roberts and those granting cert in this case may believe they have enough votes or sympathetic ears to possibly, even this narrow (but potentially large, moneywise) context, agree with the states. No matter the motivation in hearing this aspect of the challenges to Obamacare, the Court has before it the opportunity to place a check on the powers of Congress under the Spending Clause without even addressing the taxing power (through AIA) or the Commerce Clause (through the mandate). Even if Obamacare was to prevail under those cases, a loss here could actually be even more far-reaching and a greater victory for conservatives than a victory striking down the mandate.

To do justice to this subject, this must be presented in several parts because there are several issues the Supreme Court must decide. I should say up front that I am adamantly opposed to Obamacare. I believe that there are better ways to address health care reform than that which was chosen. Additionally, the method used- budget reconciliation- to pass a law that reordered 16% of the American economy was unprecedented and just plain wrong. If a law- any law- cannot stand on its own, then it is suspect from the start. That applies to riders on other laws of unrelated subject matter and the like. And if you have to get a law passed using back door methods like budget reconciliation, then there is an inherent problem in the legislation at the least, and clearly a problem with the budget rules that cry for reform. And yes, the Democrats were correct that when Republicans controlled Congress they used the reconciliation process, but certainly never to the degree of Obamacare’s reach. Additionally, the law did not, in my opinion, address the true problem with health care, namely price, which affected the vast majority of legal Americans, not the minority of Americans who lacked health insurance. And yes, again, those without health insurance affect health care costs, but the number of uninsured is overstated to begin with. When illegal immigrants are taken out of the equation and those who are eligible for other programs like Medicaid or S-CHIP, but who opt out of it for whatever reason, the problem is less urgent than Obamacare proponents make it to be. Instead of addressing the number of uninsured first, they should have addressed the costs first so that ALL Americans would benefit eventually. And, incidentally, this could have been achieved on a piecemeal basis rather than in over 2500 pages of law that many lawmakers never even read.

Regardless of my personal views, the cases now before the Supreme Court, despite which way they eventually decide, will be described as “landmark,” “groundbreaking,” and “controversial.” I will note my disagreement now. But, first let me address the fact that opposition to Obamacare is a conservative mantra. To me, being conservative is moving slowly, carefully and incrementally with checks and monitoring along the way. Obamacare fails my definition of conservativism. Most of the arguments against Obamacare are not, in fact, conservative at all, but libertarian (unless we include libertarianism as a subset of conservativism). The main line of attack- against the individual mandate- are actually libertarian in thought and practice. The fact is that the government- whether controlled by Republicans or Democrats- use the Federal tax code to deter or encourage behaviors. It is the whole idea behind subsidies, tax credits, deductions, etc. Ironically, it is also a great argument for true tax reform that simplifies those many pages of special interest carve outs even if they apply to individuals, but that is another subject.

One issue before the Supreme Court is the means by which the government is trying to influence behavior- namely, purchasing health care insurance if you have the means (the mandate). In order to do that, they “chose” the stick of the tax code. During the whole debate, Democrats and Obama argued that it was not a tax and that no one’s tax rate would increase under Obamacare. Instead, starting in 2014, if one does not have health insurance, the IRS has the right and was enabled to decrease a refund by either a set amount, or by a percentage of income. Under this system, assume I have no health insurance. I fill out my 2014 tax return and send it in on March 1, 2015 and I am due a $1,000 refund. Because I have no health insurance, the IRS will actually cut me a check for $905. They will “keep” the other $95 to subsidize other aspects of the health care law. If I still have no health care in 2015, then the “penalty” increases for that year, and so on. The whole scheme allows Obama to say that he is not raising taxes (which technically he isn’t).

Once the states and businesses began challenging the law in the court system, the Obama Administration asserted that the challenges should be blocked because no one can challenge a tax before the tax is collected. Put another way, the “its not a tax” statements during the debate were nothing but a public relations ploy. In court, the Administration was asserting that it was, in fact, a tax. There is an old law from the 1800s called the Anti-Injunction Act (AIA) which states that no one can challenge a tax or assessment in court before the tax was actually collected and a “harm” was suffered. The purpose of the law, upheld on many occasions and in many contexts, is to allow the government to lay and collect taxes without court interference. Imagine the gridlock that would occur if courts were involved every time the government decided to address a tax change. Nothing would ever get done. Instead, under the AIA, a person cannot sue regarding the legality or the constitutionality of a tax- no matter how defined- until someone actually suffered a “harm” under the law. In the case of Obamacare and the mandate “penalty,” that would not occur until 2015.

When the Obama Administration began arguing that point in the various District Courts, they were repeatedly shot down on the argument. On appeal to the Circuit Courts, they likewise were shot down and the cases were allowed to proceed, which is why they are now before the Supreme Court. Once Obama realized they were repeatedly losing the AIA argument, it was eventually dropped and the individual mandate became the central focus of the litigation. But a funny thing happened once these cases reached the Supreme Court.

In the initial filings with the Court, it was stated that neither side had a “friend” regarding Section 7421 of the act- that part that dealt with changes to the tax code allowing the IRS to decrease refund amounts. To both sides, it was a non-issue and the primary focus was on the constitutionality of the individual mandate under the Commerce Clause. However, the Supreme Court stepped in and revived the issue of enforcement timing under the AIA and appointed a “friend of the Court” to argue the case. The primary reason for the Court raising the issue again is conflict at the Circuit level. Namely, the Sixth and Fourth Circuits disagreed on whether the AIA applied. One decided that the term “tax” in the AIA was the broadest definition allowed while the other Circuit decided otherwise. In essence, the Supreme Court decided to look into the disagreement to the dismay of the government and opponents of Obamacare.

What makes this important is that the Roberts Court may actually be paving the way for the Supreme Court towards a path out of the political minefield any decision may produce in other areas, namely the mandate itself under the Commerce Clause. Should they decide that the penalty is a tax, they must necessarily decide that litigation against the law, especially the mandate’s enforcement mechanism, is blocked until such time that someone suffers “harm” under the law and then has standing to bring a court action. If, in fact, imposition of the tax or penalty or assessment is unconstitutional under the Commerce Clause, 2012 is not the right time to decide that case. Instead, under this theory, late 2015 is when the case should rightfully appear before the Court on these other constitutional issues. In effect, the Supreme Court, by reviving the issue using Circuit Court conflict as a pretext for doing so, is kicking the can further down the line. To me, the mere fact that they even reopened the issue practically unilaterally, intimates that this will be their fall back decision should there not be strong approval or disapproval in their internal debate over the individual mandate’s constitutionality. In other words, Roberts has allowed himself an “out” in this whole case, a compromise of sorts. However, that compromise would not definitively decide the main issues one way or the other and would, in effect, be a temporary victory for the Obama Administration.

In the next part, I will attempt to explain why Roberts resurrected the AIA argument despite neither party supporting the original Administration line of argument. Namely, it is because in cases totally unrelated to health care reform, in the interests of reaching a conservative practical conclusion, one needs to read the Commerce Clause and Necessary and Proper Clause rather liberally. In short, in a certain way, some members of the conservative wing of the Court have boxed in their arguments.