Monday, June 29, 2015

Obamacare, Gay Marriage and Disparate Impact - 25 Hours Which Will Live in Infamy

When historians look back on the collapse of the United States and seek to pinpoint the beginning of the end, they will no doubt look to the election of Barack Obama to the presidency. If they want to narrow the focus they will point to the period of his reign between 10:00 AM June 25th and 11:00 AM June 26th. Ted Cruz has charitably labeled this period as “some of the darkest 24 hours in our nation’s history”. It’s slightly more than 24 hours, but he’s spot on. In fact, he’s far too charitable, they are the simply the most destructive 25 hours in American history.

To some that is no doubt hyperbole, after all during Pearl Harbor 2,400 Americans died, on D-Day 2,500 did and on September 11th almost 3,000 Americans died. How is it even remotely possible that Supreme Court decisions giving gays the right to marry, the sick the ability to keep their healthcare subsidies and the government the power to fight discrimination could compare with the deaths of thousands of Americans? Tragically that is the question conservatives are faced with.

The answer, simply put, is that the United States Constitution is the rule of law for 320 million Americans and during one single 25 hour period last week Barack Obama and the Supreme Court cut out its very heart. They essentially eviscerated the document that has helped improve the lives of billions of people around the world over the last century and a half and provided the world with a great deal of stability and relative peace for the last 70 years.  Whether it’s American inventions or American industry or the American military, the United States has been a power for good – albeit an imperfect one – around the world because we had the strongest foundation of representative government yet established. While our Republic has been slow to react on occasion, the basic structure of individual rights protected by the Constitution and the powers ordained, assigned and limited by it have been the rock upon which the greatest nation in human history was built. On Thursday and Friday of last week the Supreme Court endorsed Barack Obama’s shredding of it.

On Thursday in King v. Burwell the Court destroyed the notion that words actually mean what they say. In the legislation that created Obamacare, Congress explicitly stated that subsidies could only go to citizens who purchased insurance on “exchanges established by the States”. When it turned out that many states refused to be coerced into creating such exchanges, Barack Obama simply decided the IRS would issue subsidies to everyone, even those who purchased insurance via exchanges not “established by the States”. Essentially the Supreme Court said “No problem”. As much of a problem as Obamacare is, this decision is far worse. Why? Because while Obamacare can be overturned, the Supreme Court has now set the precedent that the Executive Branch has the power to rewrite laws it doesn’t agree with without looking to Congress to pass constitutionally mandated legislation. That is literally a dagger into the heart of the document’s core separation of powers. Once the executive branch has the power to rewrite laws, what is Congress other than a convenient straw man target whenever a president needs to publicly justify his desire to act?

In a second case on Thursday, the Supreme Court decreed that Barack Obama can now decide where you live. Actually, that is hyperbole, but not by much. In Texas v. The Inclusive Communities Project the court decided that the president can use “disparate impact” to decide whether communities are guilty of discrimination, regardless of whether they have actually discriminated or not. (In this case seeking to protect employees or customers from convicted criminals counts as discrimination!) This literally means that the federal government can look at your community and if it doesn’t like the racial, ethnic or any other makeup, it can coerce the city or the municipality to changing it. I call it the Obamanization of your neighborhood. Let’s say you grew up in Southeast DC, a low income and high crime neighborhood of the nation’s capital. You start a business, find success and move out to McLean, a Virginia suburb of DC and one of the highest income and safest communities in the country. There aren’t many low income families in that community.  Too bad for thinking you could leave your past behind.  Now, thanks to the Supreme Court, even if no one in McLean ever perpetrated one single discriminatory act, if the feds decide the diversity isn’t quite right they can force the a change by coercing the community to build or provide low income housing or otherwise figuring out how to adjust the racial, ethnic or financial population so that it accurately reflects the government’s desires.  The government already had the power to tell employers who they must hire, they already had the power to dictate a schools’ diversity targets and now, thanks to the Supreme Court and Barack Obama they can now tell communities and neighborhoods what they must look like. After work and school, there’s not an enormous amount in life other than faith and families. How much longer before churches risk losing their tax exemptions based on their hue of their congregations and the government decides there are too many monochrome marriages taking place?

Finally there is Friday’s travesty of a decision. In Obergefell v. Hodges the Supreme Court decided there is a right to gay marriage, and in the process likely put a bull’s-eye on the back of the 1st Amendment. Essentially the Court created a fictional right that will trump a right that is explicitly protected in the 1st Amendment, and it did it while the country was in the midst of a vigorous discussion as to how to deal with the issue. Religious freedom is a cornerstone of American liberty; indeed it was the motivating factor for many of the people who founded this nation. Now, thanks to the Supreme Court, that freedom is gone. Across the country we will see churches, bakers, photographers and service providers of all sorts finding themselves in jeopardy of losing their money, their businesses and in some cases their freedom simply because they are exercising their 1st Amendment rights and refusing to violate the tenants of their faiths.

And so it goes… the beginning of the end as the Constitution is shredded. Words no longer mean what they say, the government gets to decide where what our communities look like and courts get to invent new rights while deciding which others we get to exercise, even those constitutionally protected.

If one were drawing up the plans for a dictatorship based on the rule of man rather than a republic based on the rule of law, the 25 hours of Supreme Court folly last week make a pretty good foundation. That’s great when the man making the rules agrees with you… but what happens when the same freedom to act is in the hands of the guy who disagrees with you?