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More On The Case and the CBS Story

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Perhaps this story is true, but it would be the first time the Supreme Court leaked so important an internal matter so soon after a case was decided. Even if true, the story would also be irrelevant to what happens next because the decision is in and the opinion is out. Nothing else matters until Obamacare and the regulations it is spawning come back before another federal court on another issue, and then it will get very interesting very fast.

Because four justices are on record as believing Obamacare in its every detail ought to have been struck from the books, the most interesting legal question now is whether there are other aspects of the law which would fail to pass the Chief Justice’s scrutiny but which were not raised in the case that was before the Court.

Two spring to mind, one of which is surely headed the Court’s way if the law is not repealed in January either because either the House flips to Democratic control or the Senate fails to flip to GOP control, or because Governor Romney fails to defeat President Obama.

The HHS regs are almost certainly going to make it to the Court eventually, and those regulations should get there on an expedited basis as they are already impacting the rights of conscience of religious believers to practice their faith as they see fit, and not just many Catholics and their institutions, but also some non-Catholic institutions such as Colorado Christian University and Geneva College, which have brought suit to enjoin the HHS rules, as well as at least one private employer who strongly rejects the obligation to provide their employees with abortion-inducing drugs.

It is fair to assume that since the four dissenters believe the entire law is illegitimate, they will vote in any new case to strike it down again, as well as all of its regulatory progeny, including the HHS regs. If the Chief Justice concludes that the HHS regs violate the Free Exercise Clause, then it is probable the four dissenters will join him, and out those regs will go, perhaps accompanied by a urgently needed clarification of the rights of conscience in an increasingly secularized society, one in which secular absolutists like this president and his Secretary of HHS see no problem in rolling over the heart-felt beliefs of millions of Americans. NFIB v. Sebelius may have set the stage for a great essay on religious freedom, one with the force of law on every court in the land.

Then there is the Chief Justice’s strong language about the Constitution’s prohibition of the “dragooning” of the states by the federal government. There have been other cases that spoke to this principle in the past, but none that carried quite so stunning a result as Obamacare’s proposed severance of all Medicaid money from non-compliant states, and the Chief Justice drew the line there. If a state now brings an action against Obamacare’s system of “exchanges” it will be interesting to see how the federal government describes its role in the absence of a state exchange in the briefs it files and the arguments it makes.

My limited understanding is that if a state doesn’t step up and establish an exchange, the Feds will do it for them, much like air quality regulatory agencies under the Clean Air Act, where the failure of a state to establish the appropriate agency and standards leads to direct control over air quality regulations by the Feds.

Health insurance has always been the province of the states, however, and the imposition of a federal exchange –with what I assume will be federal standards on qualifying plans– on top of the state’s already existing regulatory regime for insurance plans will be powerfully disruptive on the health care laws of the state, a sort of rolling eviction of the states from their traditional role –a hijacking of their authority and possibly their enforcement personnel. It isn’t money that the states would be losing, but it’s police power.

Is this a sort of “dragooning” to which the Chief Justice would object? If no state exchange is established, for example, suddenly the federal government will be dictating the health insurance policies of every state and local government and every school board and municipal agency, with enormous consequences to the already strapped state budgets and those of the local agencies, especially those that have agreed to provide health insurance to their retirees.

“Dragooning” is an accordion concept, and watching it develop within the context of Obamacare litigation will be fascinating. Every states’ rights-minded AG ought to be scouring the Obamacare statute to discover which sections of the law impose obligations or inflict penalties on the states with even slight impact. The Left’s big touchdown dance, underway since Thursday, assumed the game was over, at least in the courts, but that doesn’t seem at all to be the case.

Which is one more reason conservatives ought to be temperate in their assessments of the Chief Justice’s opinion however disappointed they are. We just don’t know how this will play out, and the denunciation brigade while certainly entitled to express surprise and disagreement with the Chief Justice’s view of the taxing power –and I am among them– shouldn’t get so absorbed in the critique as to miss the possibility that his opinion was also a roadmap, one that shouldn’t be thrown away in a fit of pique.


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