A Three Branch Cop-Out

cop-out also cop·out 

n. Slang

1. A failure to fulfill a commitment or responsibility or to face a difficulty squarely.

2. A person who fails to fulfill a commitment or responsibility.

3. An excuse for inaction or evasion.

The American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. Updated in 2009.

The Supreme Court has ruled on Obamacare and in so doing they have completed a "Three Branch Cop-Out" in which all three branches of goverment (Executive, Legislative and Judicial) failed to fulfill their responsibilities.

In diving and gymnastics, dives and routines are scored based on the degree of difficulty. The more spins and flips that are incorporated into the performance the more credit the athlete receives.

In the case of health care reform, the task was difficult at each stage. There is no disputing that fact. However, each branch of government chose not to face the difficult decisions in front of them squarely. They failed to act responsibly. I give them each a 0.0 score for they utterly failed to execute their duties for the good of the country.

Our three branch system of government was established by our Founding Fathers because they knew the fallibilities and flaws of men (and women). Especially of those who are put in a position to govern over the rest of us. Due to this fact, they put a system of checks and balances in place.

It was considered very probable that one of the three would get something totally wrong. It was possible that two of the three would take us down the wrong path. However, they reasoned it would have to be very difficult to get something wrong from all three branches of government. I doubt that they thought that all three could successfully perform a Three Branch Cop-Out. If only James Madison could score this one himself from the judging stand!

Let's look at the individual performances that made up the Three Branch Cop-Out.


Executive (President Obama)

There is little doubt in my mind that he performed the biggest cop-out. It started when he ran for President declaring that he wanted comprehensive healthcare reform with guaranteed issue coverage but with no individual mandate. Anyone who knows anything about this issue knows that this fundamentally cannot be done. He completely misled the public on this point in the campaign. If you recall, he also continually attacked Hillary Clinton on this issue in the Democratic campaign.

He further copped-out by not funding the health care program with a broad-based tax that should be the foundational revenue source of any broad social program. There is a legitimate policy argument that providing health care coverage is a fundamental function of the federal government under its duties "to promote the general welfare". However, under this "social model" concept it has traditionally followed that general broad-based taxes should be used to fund this government spending. This is the model on which Medicare and Social Security are based. It is also the model that has always been used for local schools, police and fire protection etc. President Obama chose not to follow this proven path by sleight of hand.  He paid for the extension of "general welfare" coverage but putting the entire cost on a few taxpayers in yet another redistributive income scheme.

His final cop-out was continually claiming that the individual mandate was a penalty and not a tax. We heard that he would not raise taxes on middle class families. We heard that if you wanted to keep your current coverage you could keep your coverage. We now know the whole truth and the entirety of the cop-out.

Legislative (Democrats in the House and Senate)

The legislative branch cop-out is very straightforward in this case. They had every opportunity to draft this legislation any way they wanted. The easiest way to insure that there would be no constitutional problems with the legislation (as ultimately proven by the Court's decision) would be to enforce the individual mandate with a tax rather than a penalty. Our legislators did not want to face the voters and say they voted for a tax increase. An earlier version of the bill called it a tax and this version never was put forth for a vote because they did not believe the bill could pass. Eighteen times in the statute they called the sanction for not complying with the individual mandate a "penalty". Quite simply, it was a cop-out.

Judicial (Chief Justice Roberts and the Four Liberal Justices)

The day before oral arguments on Obamacare I predicted that the law would be upheld in my blog post "Obamacare Abomination."

My guess is the Supreme Court will uphold the law.  That opinion is not based on what I think should happen but on what I think will happen. 

It is extremely rare that the Supreme Court overturns a law that Congress has passed.  The most recent data available indicates that only 158 Acts of Congress have been ruled unconstitutional since the beginning of the Republic in 1789.   This really shows the influence of politics on the Court.  There seems to be a real reluctance on the part of the Supreme Court to get involved deeply in the politics of the day.  That is a big reason that I believe that the Court will not overturn the law. 

It is difficult to see Chief Justice Roberts' actions as anything but one of the biggest cop-outs in the history of jurisprudence.  You can clearly see the "political" aspect of the Roberts opinion with the statements he made with his opinion.  Even though his job is supposed to be to protect the rights of the people under the Constitution he pulls this cop-out.

"We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

I could agree with this logic if Roberts and the majority did not have to go through such contortions to uphold the law. For example, a strong majority agreed that the law was unconstitutional under the Commerce Clause. They agreed that it was unconstitutional under the Necessary and Proper Clause. They could only find support for the law by recharacterizing the penalty provisions in the law and calling it a tax.

Thus, in effect, the Executive and Legislative branches had every opportunity to write this law any way they wanted to.  They copped-out.  Justice Roberts and a majority of the Supreme Court simply rewrote the law to save it.  Is this not the most blatant example of legislating from the bench we have ever seen?

Consider what Justices Scalia, Kennedy, Thomas and Alito stated in their dissent.

"[W]e cannot rewrite the statute to be what it is not," the four Justices write. "[W]e have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a 'penalty.' 

It is even more troubling when it is considered that the Constitution requires that tax bills originate in the House of Representatives.  Recall that the healthcare reform bill originated in the U.S. Senate.  Again, from the dissent in the case.

T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. Taxes have never been popular, see, e.g., Stamp Act of 1765, and in part for that reason, the Constitution requires tax increases to originate in the House of Representatives. See Art. I, §7, cl. 1. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.

The Federalist No. 58 “defend[ed] the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.” United States v. Munoz-Flores, 495 U. S. 385, 395 (1990). We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty. See Affordable Health Care for America Act, H. R. 3962, 111th Cong., 1st Sess., §501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess., §1301. Imposing a tax through judicial legislation inverts the constitutional scheme, and places the power to tax in the branch of government least accountable to the citizenry. [...]

Another point for consideration.  Private sector businesses are held to strict rules on truth-in-advertising, laws against bait and switch and fraudulent misrepresentation.  How does the Supreme Court square the  legal standards that would be used against a business in a similar situation and what was done in this case?  Would this not be considered fraud or bait and switch in any other case involving a private business or person?

What happens now? I wrote in my earlier blog post that if the law was sustained that it might result in public opinion finally turn in favor of the health care law.  However, it also might become a rallying call for its opponents in the upcoming election.

The Republicans and Governor Romney definitely appear to be heading down this path already.  The House has already scheduled a vote on repeal of the law for next week.   The November election now looks like it could be a referendum on both the economy and Obamacare.

If I were in charge I would take this one step further.  This is also the approach I would have taken if I were the Chief Justice.

Instead of rewriting the law as the Court did, I would have sent the law back to Congress and given the legislative branch the ability to re-do the legislation by inserting the taxing power for the penalty provision.  In effect, I would give them until the end of the year on a re-write of the law.  If they failed by that deadline, the law would be ruled unconstitutional so that the country could move on.  If they could pass it in such a way that it would pass Constitutional muster, it would stand.  This is how I believe that Roberts could have given himself political cover but also not subverted the Constitution.

There are some of you who will undoubtedly say, "How could the Supreme Court do that?"  My response is that they have shown they can do almost anything, so why would my approach have been any further outside of their powers than what was done in this case?

To House Speaker Boehner I would recommend that he follow a similar approach.  Move ahead with a repeal vote next week.  However, before that vote is taken, I would call for another vote on Obamacare that replaces the penalty language with tax language.  Do this in order to get every member of the House's (of which every one of the 435 members is up for election this Fall) vote on the record.  This would then also conform the law with what the Supreme Court has ruled is the constitutional version of the bill.  After this vote is taken, then vote on repeal of the original law.

It is time to see who cop-outs and who is truly committed to the Constitution.

The people can then take notice of the votes on the record and "fully understand the consequences of their political choices" in November.  That is the ultimate power that was given to all of us by our Founders as the final check and balance on those that govern us.  Choose wisely.