Your Honor,
The Court is called upon to consider the constitutionality of the Patient Protection and Affordable Care Act (also called Obamacare) once more. In 2012 the Court ruled Congress had the power to enforce most of the provisions of the Act, including the mandate for individuals to buy health insurance. The vote was 5-4 with the majority opinion written by Chief Justice Roberts.
One of the key issues concerned the provision requiring health care insurance or having to face financial consequences, such as a fine of $395.00 if no other exemption applied. Those wishing to see the Court rule against the Affordable Care Act argued that the fine was a tax. The Court held, however, that it was not a tax but a penalty.
Congress subsequently abolished this penalty under the Tax Cuts and Jobs Act of 2017.
There is an argument now being made that the Court should re-visit the Affordable Care Act in order to invalidate it. The government’s argument appears flawed. The attorneys for the government claim that because the penalty has been removed, the Act is no longer constitutional.
In defense of the ACA, attorneys argue that the Act remains constitutional because of the Court’s previous ruling. Nothing new is being offered to change the fact that the Court ruled that the penalty was not a tax and the Affordable Care Act was constitutional. If the Act was deemed constitutional with the fine, one is hard-pressed to see how the removal of the fine changes the constitutionality of the Act.
Legislative action to do away with that fine or penalty, as the Supreme Court declared it to be, surely does not make it a tax. Since the Court ruled that the Affordable Care Act’s penalty was not a tax it does not become a tax if removed; whether you keep or repeal the provision, in both instances it remains a penalty or fine.
The government’s position merely returns us to the original argument it made against the Affordable Care Act, that it included a tax that was unconstitutional. The Court did not agree that it was a tax. The government attorneys asked you to believe the Act was unconstitutional because of a “tax” included in its provisions but the Court already rejected that argument.
Now the government attorneys want to convince the Court that because the penalty is no longer included in its provisions, that makes the Act unconstitutional. They are arguing two different strategies but if one is wrong, both are wrong as they are mirror images of each other’s logical flaw, one legal fiction begetting another. The government claimed:
It’s a tax: the Act is unconstitutional! Now they claim:
They took the “tax” away: the Act is unconstitutional!
Both arguments are illogical and largely for the same reason. The Court ruled that the Act was constitutional because there was no hidden tax but rather a fee or penalty. We assume the Court is not ready to over-rule itself and that the Chief Justice, who authored the majority opinion, is not ready to contradict himself but will stand by his reasoning and decision.
A “tax” that is in reality a penalty and one that no longer exists does not makes the Act unconstitutional! You must question the government’s lawyer very carefully about this matter. The Court has ruled the penalty was not a tax; that line of reasoning should be scrutinized.
What does that leave the government lawyers to argue? Are they asking the Court to reconsider and overturn its own decision simply because that is what they want, without legal substance? Why have they returned a second time? What has changed?
All that has changed is the ending of the penalty. If the Act was not unconstitutional with the penalty, why would it be unconstitutional without the penalty? How and why would the withdrawal or abolition of said fine make the larger Act, of which it is a part, unconstitutional?
What, besides this provision, has changed in the structure and application of the Affordable Care Act? The government lawyers don’t want the Justices to notice the weakness of their case, the flaw in their logic, or the political climate which has compelled them to return.
They don’t want the Justices to notice that we are in the middle of a great national crisis: a global pandemic that is threatening to harm our people, our culture, our way of life–so deep and ominous is the threat of the Coronavirus pandemic.
They don’t want the Justices to notice that the government lawyers, representing the White House, would ask you to take away health care for twenty million people in the middle of this pandemic, with thousands of new cases being reported daily all across the country; the best scientific minds predict that the inevitable accompanying death toll is sure to go higher in the weeks and months to come.
The president has been described by some pundits as a narcissist, a self-centered individual more interested in his status and reputation than the great issues facing this country. Perhaps this is harsh or perhaps it hits nearer to the truth than any softer platitudinous phrasing would. At a minimum, there is enough of a controversy over the president’s character and personality that his behavior has been the subject of constant discussion since he took office.
We know the Supreme Court is above politics, or it should be. We know Justices are appointed for life, precisely to remove them from the arena of politics and so they may distance themselves from the sometimes highly charged political climate; Justices are appointed for life to allow them to exercise their independent judgment in the security of their appointment and the safety of their person.
We know Justices are not supposed to bring their own opinions and subjective feelings to the consideration of the case before them. We know the Justices are Honorable man and women who wish to carry out their duties in as fair-minded and wise a manner as is humanly possible. Yet they are not born blind; they cannot remain wholly unaware of the Coronavirus health crisis and political struggles going on outside the Supreme Court Building.
It is, in truth, never proper for any attorney on either side to introduce that dangerous element of political rancor that veers away from logic and the law, from court precedent and narrowly-constructed arguments to attack or defend a position. Only under the most extraordinary of times can the Court even afford to glance at the reality outside of its windows.
The fact remains, however, that this particular decision concerning the Affordable Care Act must be made in a year where the current president’s behavior, character, and decision-making ability have come under fire time and time again.
The truth is, the Court is being asked by this president to revisit an issue upon which the Justices have already ruled (Justice Roberts for the majority) and the president makes this request in the middle of a national pandemic.
That health system of treatment and insurance which is now in place cannot afford to be dismantled at this grave moment of crisis in our nation’s history. The Affordable Care Act is part of the first line of defense against the Coronavirus epidemic.
Lincoln had doubts whether he would be re-elected in 1864; he rather thought he wouldn’t be and was somewhat surprised and gratified when he was. When complimented on his re-election which his supporters attributed to his leadership, Lincoln expressed his view that it was more likely he won because voters were wise enough to know you don’t change horses in mid-stream; likewise, it is not a good idea to change health systems in the middle of a pandemic.
Yes, the Honorable Justices are not supposed to let their awareness of such things affect their judgment and yet they must wonder at times how the rulings they are asked to make could affect the whole of society.
We understand that the Justices must confine themselves to the constitutional questions at hand but we also recognize Your Honors as reasonable man and women. We feel we are within our rights to hope and pray that you receive the wisdom and compassion needed to guide you.
The people wish for a wise ruling that will be appropriately lawful and constitutional and which will, at the same time, allow the Court to recognize and fulfill its obligation of doing that which is best for American society.
There is before you, Chief Justice Roberts, a powerful legal argument in place for rejecting the government lawyers’ claim: the same that was reached in the landmark decision that upheld the constitutionality of the Affordable Care Act. Yet, if ever there were a time to look beyond the law to remember mercy and compassion, this is that moment.
This is that rare moment in history where we hope and pray that the Chief Justice of the Supreme Court of the United States of America will reach deep within himself to combine the wisdom of his understanding of the law with the gentle compassion of his heart.
We ask the Court to reject the government’s argument and maintain its original landmark decision that the Affordable Care Act was and is constitutional.
Thank you, Your Honor!
Mr. Chief Justice
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