The Republican Lawyer Blog : RNLA, Health Care

Obamacare Ruling Post-Mortem Thoughts

Michael Collins — Mon, 02 Jul 2012 13:47:00 GMT

At a Federalist Society event on Capitol Hill, two attorneys who spoke at the RNLA’s 2012 National Policy Conference and were intimately involved in the Obamacare litigation provided their insights into last week’s decision.

Michael Carvin, who represented the National Federation of Independent Business before the high court, spoke about the majority opinion upholding the Obamacare individual mandate.

Carvin remarked that it is hard not to be cynical about the process, with the Court finding the individual mandate exceeds Congress’ commerce power, but somehow fits within its taxing power.

He believes that the court effectively changed the individual mandate statute, as on its face, the statute establishes fines as a consequence to the mandate. “No rational person can think this wasn’t a re-write,” he said.

Further, Carvin was disillusioned about re-writing the statute to be a tax, considering Congress and President Obama explicitly told the American people the individual mandate was not a tax. He claimed that deferring to Congress and the Administration on the individual mandate being a tax is like “deferring to Bernie Madoff because you believe in the free market process.”

Carrie Severino, Chief Counsel of the Judicial Crisis Network and author of an amicus brief in the Obamacare case, also spoke at the event.

She refuted comments that have labeled Chief Justice Roberts’ opinion as “statesmanlike,” saying that such actions are judicial activism. “Decisions based on considerations other than the law itself” are judicial activisim, Severino said, citing a definition promulgated by Judge Robert Bork.

Despite the setbacks for opponents of the individual mandate in the ruling, Severino proffered that there are three “silver linings” that those on the losing end could take away from the holding.

First, she noted that the holding exposes the dishonesty in comments by congressional Democrats and President Obama that the individual mandate does not constitute a tax. As Chief Justice Roberts declared, the individual mandate only stands because it is an exercise of Congress’ taxing power.

Second, she believes the holding provided some key narrowing in commerce clause jurisprudence. Despite upholding the individual mandate, Chief Justice Roberts provided a fifth vote for establishing that there is an end to Congress’ oft-cited commerce power, which could be applied in future Commere Clause cases.

Finally, Severino noted that the decision has created an opportunity for citizens to become educated on constitutional issues. She proffered that conservatives benefit when Americans learn more about the constitutional structure and that Congress is a branch of limited, enumerated powers under Article I.

While on the same side of the case as Severino, Carvin said that he is “not of [the] silver lining view.” He called the outcome a “fundamentally frustrating episode” and repeatedly called the Chief Justice’s reasoning “sophistry on stilts.”

However, he did say that the politics may benefit Republicans, and that he hoped this November’s election leads to the decision that many contend Chief Justice Roberts avoided making – striking the individual mandate.

I'm Back

Chris Berg — Fri, 26 Mar 2010 19:46:00 GMT

My friends, after three long months I’ve decided to return to the blogosphere. Alas, I’m neither tanned nor well rested. The ever evolving campaign finance laws have kept me burning the midnight oil, and the nightmare that is Obamacare has kept me awake many nights. Out of principle I’ll remain this lovely pallor because I won’t pay a 10% federal tax at the tanning booth - not that this is something I have ever partaken in, two minutes in the sun and I’m a permanent shade of pink or red.

So why am I back?

The current state of the law is changing so rapidly we all need to do a better job staying informed. Just today decisions were released in SpeechNow.org v. FEC and RNC v. FEC. These are the most significant campaign finance decisions since the release of Citizens United v. FEC on January 21st. At least one of them, RNC v. FEC will be championed to the Supreme Court by Ted Olson, a recipient of the Republican Lawyer of the Year award. When we look beyond the realm of campaign finance litigation to what’s occurring nationwide as Republican Attorneys General defend their states and citizens against mandates imposed by the recent federal health care legislation, I feel there are important legal issues that need to be highlighted, and I believe this blog provides an excellent venue for that debate.

So where have I been?

In January I accepted a new position with a non-profit organization in Washington DC. In February I was elected chairman of my local county party. I’ve been organizing a national youth leadership conference and continuing to work on campaign finance issues.

While I no longer work for the Republican National Lawyers Association I still believe in the important work that they do. This forum has provided us an important venue to share election law happenings and discuss the events of the day. I hope that my commentary will help keep you abreast of the rapid changes in this important area of the law. As always my comments on this blog are my own and do not necessarily represent the views of the Republican National Lawyers Association or my current employer.

Beam Me Up – Maybe James Traficant Has the Healthcare Solution

Chris Berg — Mon, 09 Nov 2009 23:06:00 GMT

Pelosi-Care passed the House. I'm sure you've already checked out the RNLA paper on Healthcare Reform. SEIU is lobbying heavy for passage in the Senate, and ACORN has to sit this one out while they wrangle with their latest scandal. Who can save the day? How about former Congressman James "Beam Me Up" Traficant? I wonder why he's holding town hall meetings.

While not offering a specific plan, Traficant urged his audience to join forces with retirees from other companies as well as salaried workers to respond with a strong, unified and collective voice. The issue regarding Delphi retirees has been addressed but must be resolved, he said.

"If it's not a marriage, at least let it be a shotgun wedding. Join forces," Traficant said, referring to collaborating with former LTV Steel and other retirees.

The ousted 17th District congressman, who recently was released from federal prison after serving seven years for various corruption crimes, also implored the Delphi retirees to have clear goals and be strong and assertive when approaching their elected officials.

"Come together and work with Congress and push them to make you whole," he said.

Read the full article here.