Why Obamacare Haters Should Care About Gay ‘Marriage’

At first blush, it would seem that fiscal conservatives who hate things like Obamacare would be uninterested in the Supreme Court’s ruling in June on gay “marriage.” But the same judicial philosophy that gave us gay “marriage” kept Obamacare alive. Consequently, no one’s liberties are safe from this Court. No one’s.

To understand why the judicial philosophy undergirding the gay “marriage” ruling, Obergefell v. Hodges, is the same as the SCOTUScare ruling, King v. Burwell, you need to understand what the Court did in King.

The Legal Issue in King

In King, the issue was whether government insurance premium subsidies were only available for polices purchased on insurance exchanges “established by a state.” The reference to “state” exchanges occurred upwards of seventeen times in the statutory language of Obamacare.

As you know, this was a problem since few states established exchanges; most were established by the federal government.

The Practical Problem in King

This was a problem because the Court knew that if the subsidies could not also be given for policies on federal, government-established exchanges, then Obamacare would collapse as a practical matter. The premiums would not longer be affordable for the majority of policies being bought through state and federal exchanges.

So, effectively the Court “interpreted” the statutory words “established by the state” to mean “established by the state or the Federal Government.” That’s exactly what Justice Scalia said in his dissent, “The court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government’ … .”

What the King Court Really Did

What the Court did was effectively legislatively enact a statutory amendment to Obamacare. Passing laws and amending laws is not the function of the Court.

But, liberals say, “Obamacare would have collapsed. What was the Court supposed to do?” Again, Scalia gave the answer, “Rather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act’s limitation of tax credits to state exchanges.” Of course, Congress might not have re-enacted Obamacare, but that is a political question and should be of no concern to the judiciary.

Letting the Court judge and the legislature legislate is the complementary work of governing envisioned in our Constitution. It is nothing strange or new. Every year as a state Senator, I voted on laws amending existing laws to “fix” something that in our limited foresight we didn’t anticipate. Congress, not the judiciary, should have amended Obamacare.

The Obamacare and Gay ‘Marriage’ Judicial Philosophy Are the Same

But here is where the Court’s judicial philosophy is the same as under Obergefell. In both cases, the Court was acting as a legislative body. In King the majority amended a statute to say what it didn’t say, and in Obergefell they expect states to treat their marriage statutes as if the Court had amended them to say “two people” can marry instead of “one man and one woman.”

Violating Basic Principles of Government

Our Founding Fathers were very clear regarding the limited nature of the Court’s power. Federalist Paper 78 says that the Court has “neither Force nor Will, but merely judgment.”
In other words, the Court can judge whether a law is constitutional, and it can judge the meaning of the actual words in law, but it can’t exercise the political “force” nor “will” to write a law or to amend a law by interpreting it to add words that aren’t there. When the Court does this, it should scare all of us.

Why This Is Scary for All

We are warned in Federalist Paper 78, “[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers.” This is true because when words no longer have any meaning, as they apparently did not in King, then the words of statutes and the Constitution will morph into whatever five unelected, unrepresentative lawyers on the Supreme Court say it is. Representative government of and by and for the people is dead!

What Can Tennesseans Do?

Since Congress has chosen to abdicate its responsibilities under the Constitution to reign in the Court, it will be up to the states to do so. While Congress chose to do nothing to keep the Court from amending its Obamacare statute, Tennesseans can insist that its legislature not be so spineless. We can insist that Tennessee show Congress how to have a backbone by reminding the Court that only our state legislature can amend Tennessee’s marriage statutes. If you want to encourage them to do that, then go to Reclaiming Our Liberty to find out what you can do.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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How We Lost the Tenth Amendment

As I continue to reflect on the Supreme Court’s marriage ruling, I’ve wondered how we got to the point that the states lost control of an area of the law that, just two years ago, the Court acknowledged to be historically within their province. I have an idea, and the blame for it lies at our feet.

Recently, I was re-reading portions of the Federalist Papers to better understand the role of the federal judiciary as envisioned by our Founding Fathers. I was doing so that I might learn something from the past that would help me better understand what could be done in the present to reign in the Supreme Court in order to restore greater liberty to the people by returning more power to the states.

In Federalist Paper 46, James Madison said that “the powers proposed to be lodged in the federal government” (which includes the judicial branch) would be “as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union.” Madison said this to silence “all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments” by those opposed to the Constitution.

More particularly, Madison said the hope was that structure and limited powers under the Constitution would “partake” of a “spirit” such that the “new federal government” would be “disinclined to invade the rights of the individual States, or the prerogatives of their governments.”

This was true even with respect to the judiciary. In discussing the role of the judiciary in Federalist Paper 82, Alexander Hamilton said, “the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head,” which “head” obviously included the federal Judiciary.

So, if that was the intention, we have every right to ask what happened. Were not the other two branches of the “federal head”–the Executive and the Congress–infused with that “spirit” which was to protect the “rights” and “prerogatives” of the states?

Of course they were, but they have failed to use them. But why?

I think the answer can be found, at least in part, in Federalist Paper 78, wherein Hamilton said that “liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments.”

In my view, that “fear” has been realized because expansive powers given by the Supreme Court to Congress (consider Obamacare, now known as SCOTUScare) and to the Executive have given rise to the aforesaid “union,” aggregating in “the federal head” great power by which their respective attentiveness to the governments of the states has been diminished.

I’m not necessarily big on conspiracy theories, but I am big on the fact that men are not angels, as Madison said in Federalist Paper 51. In other words, men lust for power and control and have since Adam and Eve decided to take things in their own hands. The Supreme Court gave Congress and the Executive powers beyond those envisioned by our Founding Fathers and, as they say, who wants to “bite the hand that feeds them”?

So, is the loss of our “rights” and “prerogatives” as a state the fault of our presidents and members of Congress over the years? No, the fault is ours. “We the people” have failed to understand our own Constitution and how our compound form of government–a limited federal government and state governments–was supposed to work. As a consequence, we’ve given our votes to presidents and members of Congress who either did not understand it or who wanted to aggregate power to themselves.

We have met the enemy and it is us.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Insure Tennessee’s Three-Ring Circus

The debate on Gov. Haslam’s proposal to expand health insurance coverage through the authorization provided by Obamacare began and ended this week. There seemed to be three primary themes to the debate, just as there are three rings under the big top. And just like the big top, one ring took center stage.

No doubt, for many the debate was about how to provide health care services to the working poor, determined to be those earning between 100 and 138 percent of the federal poverty level. Personally, I don’t think anyone in the legislature is unconcerned about access to deliver quality health care to those who struggle to afford it. But in the first “ring” were those who think the answer is civil government.

In the second ring were health care providers, hospitals in particular, who made a deal with the federal government in connection with the passage of Obamacare. The deal was that they would give up certain payments to care for the poor in exchange for more of those poor being covered by insurance through which they would then get paid.

The part of the Obamacare law that took away their money is still law. Unfortunately for them, the Supreme Court upset the applecart when it said states didn’t have to expand coverage. The combination was, for them, a lose-lose result. To be honest, for a number of those in this ring, the issue was, quite understandably, a matter of finding a way to get the money they’d made a deal to get and had lost.

The third ring was composed of those who were opposed to Insure Tennessee. But within this ring were all kinds of “performers.”

There were those who saw this as “Obamacare” and they weren’t going to be for anything that might come remotely close to making it look like they were somehow part of Obamacare. The political coattails from the President’s hospital gown flowed long and wide for them. And within this group were those who were never going to trust an oral promise from the you-can-keep-your-insurance-if-you-like-it administration that we could get out of the program if we wanted to.

Then there were those who thought we could get a “better deal” from the federal government than what the Governor had secured and those who wanted to wait to see whether Congress or the Supreme Court pulled up the Obamacare tracks on which Insure Tennessee was to run.

Others heard this as the second stanza of Governor Ned McWherter’s swan song in the early ‘90s, the original expansion of health insurance coverage beyond the Medicaid population known as TennCare. They had been there and gotten the “Axe the (income) Tax” T-shirt to prove it. Once was quite enough for them.

And lastly, there were those who simply didn’t think providing health insurance is within the function, scope, or competencies of civil government. For them, it was kicking the can down the road of needing to get civil government out of the health care business as much as possible.

In talking to those in this last group, I don’t think they failed to appreciate the immediate “pain” that some hospitals are experiencing or that some poorer individuals are feeling; they just thought Insure Tennessee was a short-term solution that would lead to greater pain down the road. Perhaps it was, for them, what I often heard during the TennCare-generated income tax battles toward the turn of the century, “When you’re in a hole, stop digging.”

In any event, at the end of the day, those in the third ring took center stage and closed down the show. Now the legislature will get back to its regularly scheduled business. In other words, the circus will be back in town again next week.

So don’t stop paying attention to what our legislators will be doing. And attending one of our State Legislative Issue Briefings over the next few weeks is a great way to do just that.

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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Government Intervention: Whose Children Are They, Anyway?


Whose Children Are They, Anyway? (Dec 14, 2011)

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“… Where there’s not an instance [that] a child is in imminent danger of some kind of physical or sexual or severe psychological abuse that is objectively determined [and] the state subjectively begins to go in and just say Hey, we think that this kid is in long-term danger because he’s eating too much and removing that child from the home — then we are getting to the point where the state is clearly abusing its authority and trampling parental rights and individual 4th Amendment liberties,” says Barber.

Mandating Individual Responsibility

In mandating that everyone have health insurance, the President takes the position that the federal government can mandate that you take personal responsibility. Am I the only one who sees the irony in that?

Recently the U.S. 11th Circuit Court of Appeals ruled that the individual health insurance mandate in the President’s health care law was unconstitutional. And in the language he used to decry the ruling, the President revealed his understanding of personal responsibility.

The President, in response to the ruling, continues to call the insurance mandate the “individual responsibility” provision. But in mandating that everyone have health insurance, the President takes the position that the federal government can mandate that you take personal responsibility. Am I the only one who sees the irony in that?

Perhaps if the federal government had not gotten into the business of trying to taking care of us from birth to death in the first place years ago, we wouldn’t be going broke as a government or having to talk about entitlement reform. And perhaps we, along with private sector businesses and charitable organizations, would have been more responsible for ourselves and taken care of ourselves and our needs a bit better.

But, let’s be honest, it’s not all the government’s fault. It’s not all the President’s fault. It’s not all Congress’ fault. Everybody’s been trying to find somebody to blame for our current mess. Well, here are two culprits I’ve not heard anyone mention in recent weeks.

First, us. Yes, we, the people. We are the ones who elected the government leaders who led us down this path. We are the ones who didn’t pay enough attention to where this path would eventually lead us and kept electing people who continued down the path we’re on. If this is a government of and by and for the people, then we need to take a hard look at ourselves and consider the four fingers pointing back at us when we point one finger of blame at someone else.

Second, the church. Yes, the church. Sadly over the years I’ve gotten so many e-mails from Christians saying that it is the government’s job to care for the sick, the poor, the hungry, the widow and the orphan. While this can’t be said of every individual church, it seems to me that the church, as a whole, through its leaders, abdicated its responsibility in these areas to the government. And now we have to pay the piper—we need to pay our taxes to get us out of the governmental budget hole we’re in and increase our giving to the church (or even para-church ministries) so that it can do what it was charged in Scripture to do.

Perhaps we have met the enemy, and it is us.