Like it or not, ObamaCare is here to stay. Thus spoke Justice Roberts. Quite frankly though I don’t care. If government wants to stick it to us it will. I will have much more on this in later posts. More what I’m concerned with is the logic used to justify the position and the issues I have with it. You have to understand: more than anything a rabbi is an analytic mind and we really want to understand the world at its deepest level. Talmudic thought is the way to really think like a Jew.
This is the basic breakdown of the ruling on the case, which was centered on the constitutionality of the Individual Mandate. 20:1 someone finds a different clause to take to court. This isn’t over for those who want it killed. Here’s what the court ruled:
- The I.M. cannot be sustained under the Commerce Clause i.e. the government can’t make you buy anything.
- The federal government may not threaten states that refuse to enforce the Medicaid expansion by taking away their funding.
- The law is constitutional under the taxation statute.
- The Supreme Court may not overturn a law if there is any constitutional support for it. It is not the job of the Supreme Court to decide policy.
The first two rulings are pretty clean and don’t require much analysis. The Supreme Court upheld that the government can’t make you buy anything just because you might enter the market at some point. Also, the Supreme Court upheld a separation between the powers of the federal government and state governments. These items anyone should have come to the same conclusion.
The logic behind upholding it is where you get into your real Talmudic thought, so put your thinking caps on. Remember, this is my spin and I’m sure any Constitutional law professor would rip me a new one. I invite them to comment.
Basically, there are two ideas conflicting here: precedent and language. This case has actually come up previous, at least from what I learned. Social Security in its time raised the same eyebrows and the same objections. The Supreme Court upheld Social Security under Congress’ power to tax. Going with this, Chief Justice Roberts was correct and the I.M. is fine.
However, the language of the bill doesn’t confort to this notion. The bill itself says that people must buy health insurance or face a penalty. For the Talmudic mind to maintain the law, it would have to be worded in a very unusual way called a Telsher hakira. This requires explanation. Very late in the rabbi game, about the last 100-200 years, there was a major move to systemize Talmudic thought into very sweeping generalizing rules, sometimes causing distortions in the law and tradition in practice but making it much simpler for the average Talmudic scholar to learn on their own rather than follow some of the much more complicated logic of earlier generations.
The most famous school of this is Brisk, who developed a whole system of learning based on fitting all of Jewish law into sets of boxes where the law is considered to fit one category or the opposite. The most famous example is the heftza-gavra (does this involve a person’s obligation to do it or that the object have it done to it). So a heftza (object) that would have to just have a mitzvah done to it is that someone’s roof needs a fence. If a fence is already there when you move in, you don’t need to tear it down and put it up again. However, a person (gavra) is required to put tefillin on themselves, not that every morning you just have to make sure someone puts them on.
The Telsher hakira is different. Their school seems to be involved with taking the less logical choice of how to understand something and show how it works. For example, what makes tea sweet: the sugar or the stirring? A Telsher would say the stirring. So why do you need the sugar? To tell you how long to stir. Obviously!
So for this law to work linguistically it should have been written as follows: we are instituting a new healthcare tax to provide the uninsured with insurance. If you want to get out of the tax, then you can buy health insurance instead, provided it meets government standards.
Justice Roberts selected precedent over language. This doesn’t surprise me. I’ve read a number of Supreme Court decisions, and in general they do not seem to be nearly as hung up on language as the rabbis are. In my opinion, many should be challengeable because they’re just not clean. But we don’t check the Supreme Court and this makes sense since putting a check in would neuter the Court’s ability to do its job.
As for the fourth piece, he is correct as well. The Supreme Court’s sole function is to check constitutionality. It’s not there to rubber stamp legislation or engage in legal justice. The Supreme Court is not supposed to have legislative power, like it does in Israel. If you want to be horrified by abuses of power by the courts, go look at some of their decisions.
So, as you can plainly see, it is much cooler to be a rabbi than a lawyer. But you already knew that.
