Monthly Archive for July, 2012

Gobsmacked!

Gobsmacked!

That’s how I felt when I heard the news about the Supreme Court ruling on Obamacare. It’s not that I believed the law would be found constitutional - I gave up trying to predict the high court a long time ago.

And it wasn’t even that Chief Justice Roberts, not Justice Kennedy, was the swing vote. Grace-Marie Turner, president of the Galen Institute, health care policy expert and frequent guest on my radio show had warned us more than once not to be surprised if this happened.

The part that gobsmacked me, and basically everyone else, was the method that Roberts used in order to find a way to render Obamacare constitutional, which was nothing short of contrived (I promise, I’m using this word as the best way to describe his decision, not to be pejorative). Writing for the majority, Roberts divined that the individual mandate, the financial linchpin of the law and the most controversial element, is a tax. And since the Constitution gives Congress the power to tax citizens, the mandate is constitutional.

All of this would be well and good, except that for three years, the namesake of Obamacare and all of its other proponents vociferously argued that the individual mandate is a penalty, and absolutely NOT a tax. In fact, the high court ruling actually included that Congress does not have the right to expand the interpretation of the Commerce Clause (Article I, Section 8, Clause 3, of the U.S. Constitution) to include penalizing a citizen for not buying a product or service. (And that’s good news as a precedent for the future.)

So, based on that decision, Obamacare would not be constitutional if it were considered as written, passed by Congress and signed by the President. But since Justice Roberts - and the four so-called, “liberal” judges making up the majority - transmogrified the penalty in front of them into a tax, that allowed Obamacare to be rendered constitutional.

Some say Roberts made his decision to prevent his court from being perceived as partisan, the way the Rehnquist court was after the 2000 Bush v Gore decision. Some say - and a part of his written opinion actually intimates this - that Roberts felt the future of Obamacare should ultimately rest in the hands of the electorate, which he knew would be possible in barely more than four months.

By voting with the liberal wing of the court, Chief Justice Roberts declared his independence and demonstrated intellectual honesty; both are traits I admire very much. But, alas, I fear the contrived method he used - turning a penalty into a tax - to produce this particular ruling may go down in history as not the finest hour of this chief justice.

Finally, here’s a political observation: The Roberts’ ruling on Obamacare was a gift to Republicans, but not the way many pundits are saying. I think it will result in longer coattails for Mitt Romney on November 6 with the down-ballot candidates, like the House and Senate, to a degree that he would not have been able to achieve on his own.

We continue to live the Chinese curse: “May you live in interesting times.”

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Since last week’s Supreme Court ruling on the Patient Protection and Affordable Care Act, I have talked with several experts on my radio program, including Michael Reagan, Barbara Weltman, Grace-Marie Turner and Rich Galen, on what will happen now - from the potential costs and implementation of the bill to the politics and possibility of repeal. Click here to see the list of guests and listen or download any of our conversations.

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America: Independent & Entrepreneurial

The first Plantagenet king of England, Henry II, is important to contemporary small business owners because he’s considered the founder of a legal system to which entrepreneurs owe their freedom to be.

Ambitious and highly intelligent, Henry’s attempts to consolidate all of the 12th century British Isles under his rule created the need for order. And while the subsequent reforms were intended more for his own political expediency than to empower the people, they actually gave birth to a body of law, now known as English Common Law, which replaced elements of the feudal system that included such enlightened practices as trial by ordeal.

Six centuries after Henry’s death, the legal and cultural tide of personal freedoms and property rights that evolved from his reforms were being established across the Atlantic. In the colonies, a group of malcontents, now called America’s Founders, envisioned, created and fought for a new interpretation of Henry’s legacy. Their plan was different because it was sans kings.

In The Fortune of the Republic, Ralph Waldo Emerson wrote, “We began with freedom. America was opened after the feudal mischief was spent. No inquisitions here, no kings, no dominant church.”

In Origins of the Bill Of Rights, Leonard W. Levy noted that, “Freedom was mainly a product of New World conditions.”

Those conditions, as Thomas Jefferson so artfully wrote in the Declaration of Independence, were, “…life, liberty, and the pursuit of happiness.”

These were 18th century words for freedom and embryonic conditions for which the 56 signers of Jefferson’s document put their lives and liberties at risk on July 4, 1776.

But America’s founding documents weren’t perfected until they perpetuated rights that were, as John Dickinson declared a decade earlier in 1766, “…born with us, exists with us and cannot be taken from us by any human power without taking our lives.”

By definition entrepreneurs take risks. But only freedom to enjoy success can make those risks acceptable. Thank you, Henry II.

Research shows that there is a direct connection between the rate of new business start-ups and economic growth. And the American experiment has demonstrated that a healthy entrepreneurial environment fosters national economic well-being. Thank you, Founders.

Without their vision, courage, passion and sacrifice, it’s doubtful that entrepreneurship as we know it would exist today. And if capitalism is the economic lever of democracy, entrepreneurship is the force that renews the strength and reliability of that lever for each new generation.

We began with freedom. Freedom to dream and to try; to succeed and to fail; to own and to enjoy; to accumulate and to pass on to the next generation.

We began with freedom and entrepreneurship was born. We began with freedom and capitalism was made to flourish.

We began with freedom. Happy Independence Day, America.

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