About Me

In writing the "About Me" portion of this blog I thought about the purpose of the blog - namely, preventing the growth of Socialism & stopping the Death Of Democracy in the American Republic & returning her to the "liberty to abundance" stage of our history. One word descriptions of people's philosophies or purposes are quite often inadequate. I feel that I am "liberal" meaning that I am broad minded, independent, generous, hospitable, & magnanimous. Under these terms "liberal" is a perfectly good word that has been corrupted over the years to mean the person is a left-winger or as Mark Levin more accurately wrote in his book "Liberty & Tyranny" a "statist" - someone looking for government or state control of society. I am certainly not that & have dedicated the blog to fighting this. I believe that I find what I am when I consider whether or not I am a "conservative" & specifically when I ask what is it that I am trying to conserve? It is the libertarian principles that America was founded upon & originally followed. That is the Return To Excellence that this blog is named for & is all about.

Friday, January 30, 2015

The Equal Protection Clause's Double Edged Sword

The Supreme Court has placed two cases on their docket in 2015 that will be decided by June 30 that have the potential to be important turning points for our country.  This post presents a legal logic that shows how a decision by the Supreme Court that finds homosexual marriage constitutional in the first case should also find the current ObamaCare case before the court unconstitutional. 
Earlier this month the Supreme Court announced it was getting back in the marriage business when it said it would decide whether or not homosexual couples have the constitutional right to marry everywhere in America – currently 36 states & DC legally recognize homosexual marriage meaning there are only 14 states that don't.  See graph below from Wikipedia.
click on map to enlarge
Couple this homosexual marriage case with the addition of the ObamaCare case last November to the Supreme Court docket regarding whether or not subsidies (in the form of income tax credits applied to healthcare insurance premiums) for low and middle income healthcare insurance purchasers are available under the ObamaCare legislation if healthcare insurance is purchased on a federal exchange rather than a state exchange & we have the potential for two important turning points in our country in 2015.  Currently only 16 states and DC have established healthcare insurance exchanges so a ruling denying subsidies to the people in the 34 states that bought their healthcare insurance under the federal exchange has the potential to cripple ObamaCare as described hereinafter. 
The homosexual marriage issue gained momentum after June of 2013 when the Supreme Court struck down part of the anti-homosexual Defense of Marriage Act that was enacted in 1996 during the Clinton administration.  Since then courts have found bans on homosexual marriage unconstitutional & four Appeals Courts have upheld the unconstitutionality of such bans.  When the Court of Appeals for the Sixth Circuit found the bans constitutional in the four states (KY, MI, OH, TN) served by the Sixth Circuit Court the Supremes agreed to hear four cases that were brought on appeal by homosexual-couple plaintiffs regarding the Sixth Circuit Court's ruling regarding whether states may constitutionally ban same-sex marriages &/or refuse to recognize such marriages legally performed in another state.
The foregoing is a brief summary of the court actions that resulted in the Supreme Court agreeing to take up the homosexual marriage issue.  Do your own research if you need more detail on the cases.
The common thread in all of the lower court cases that found the homosexual marriage bans unconstitutional was the Equal Protection Claus of the 14th Amendment - no state shall deny to any person within its jurisdiction "the equal protection of the laws", & if this controls in the Supreme Court decision homosexual marriage will be the law of all the land.
Now extend the same equal-protection-of-the-laws logic to the ObamaCare case.  Does someone in New Jersey not have the same right to subsidies when buying the same healthcare insurance policy as someone in New York does just because NJ did not set up its own healthcare insurance exchange like NY did?  Of course this logic separates all the 16 states & DC who set up their own healthcare insurance exchanges from the 34 states who did not set up their own healthcare insurance exchanges.  See map below that shows the 34 states where people could lose their healthcare insurance subsidies because of the ObamaCare lawsuit described above.  The case is not intended to directly affect the half of the law's coverage regarding Medicaid expansion.  This post also does not address the probable dissatisfaction with ObamaCare that healthcare insurance policy holders will feel once they realize the co-pays & high deductibles that must be met before any benefits are paid.
 click on map to enlarge
In this eventuality the problem for the ObamaCare legislation starts because many people in the aforementioned 34 states would not be able to afford the healthcare insurance premiums without the subsides & accordingly the individual mandate that requires people to buy healthcare insurance in the first place would no longer apply to such people who would just simply drop their healthcare insurance coverage – ObamaCare exempts people from complying with the law if the premiums exceed 8% of household income.  Similarly, such a ruling would extend to large employers in these 34 states who don't offer healthcare insurance to fulltime employees in that they would no longer have to pay a penalty for not offering healthcare insurance because the employer mandate is contingent upon the employer's employees being eligible for the subsidies.  No healthcare insurance policy, no premiums, & no penalty for either the individual or employer for respectively not having or providing healthcare insurance means ObamaCare is rendered null & void for over half the people in the country because the law would be unconstitutional because it would not treat people in all 50 states the same.
This provides a tremendous opportunity for the Republicans who have incessantly talked about reforming & replacing ObamaCare for years.  But what would they actually do?  Boehner says there are three committees working on a Republican alternative but one unifying replacement has never been presented.
What is known is that 87% of the people who signed up for ObamaCare on the federal exchange in 2014 were eligible for subsidies that covered three quarters of the premiums – the average monthly premium was $346 for individuals who qualified for federal subsidies but those individuals were responsible themselves only for $82 a month once the subsidies were applied.  Nearly half of such people paid less than $50 per month.
It is highly doubtful that these recipients will want to give up their healthcare insurance policies & subsidies just because nine unidentifiable people (to most of them) in black robes made a decision based on a document written 228 years ago.  This type of practicality by people only interested in what they can game out of the system today will put tremendous pressure on 1) Republican members of Congress to quickly remedy the ObamaCare legal problem in a way that restores the subsidies &/or 2) governors in the 34 nonconforming states to establish their own state ObamaCare healthcare insurance exchanges thereby making everyone with earnings below 400% of the federal poverty level within their state eligible for the subsidies.  Either way it will not be a pretty picture of capitulation.  I would have to see Boehner & the Republicans stand up to this pressure to believe it.
To not leave Boehner alone on the limb that is being sawed off I offer The Solution To America's Healthcare Problems.
With regard to the homosexual marriage case - the problem really is that the government has stuck its nose in & there are some 1,100 federal laws that rest on the definition of marriage.  Do away with these laws & you have removed the equal protection of the laws argument. 
Bill Rollyson has written to me regarding government approved marriage -  "It is another source of government control. . .heterosexual couples should be fighting to leave a state-controlled approved marriage instead of gay couples fighting to be put under its control."

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