Freedom in Fiction: A Man for All Seasons

“If you’re going to be a good and faithful judge,” said Supreme Court Justice Antonin Scalia in a 2005 speech, “you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”

Justice Scalia, who died February 13, 2016, was a champion of “textualism,” a judicial approach which attempts to interpret law according to the text as it was intended by the legislators who wrote it. Scalia’s “originalist” defenses of the U.S. Constitution during his thirty years on America’s highest court will influence legal scholarship for generations.

One of Justice Scalia’s heroes was Sir Thomas More, England’s chancellor under Henry VIII and a champion of the rule of law as a check on royal power. (Scalia has even been photographed wearing a replica of More’s hat, as seen in the famous Hans Holbein portrait.)

Given Scalia’s own passion for the rule of law, and his admiration for More, wouldn’t it be easy to imagine him delivering some of the best lines in Robert Bolt’s timeless play, A Man for All Seasons—a classic that deserves revisiting as Scalia’s own legacy is discussed since his passing….


“So now you’d give the Devil benefit of law!” declares Thomas More’s son-in-law Roper in one famous scene.

“Yes,” More replies. “What would you do? Cut a great road through the law to get after the Devil?”

“I’d cut down every law in England to do that!”

“Oh? And when the last law was down, and the Devil turned round on you―where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast―man’s laws, not God’s―and if you cut them down―and you’re just the man to do it―d’you think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

Sir Thomas More is remembered as a great statesman, humanist, and hero of conscience. Bolt’s play shows him to be all three, but particularly focuses on More’s defense of the rule of law against its disintegration and a culture of “political correctness.”

Henry VIII’s decision to make himself head of the Church of England to divorce Catherine of Aragon is famous. Considered less today is how Henry’s actions changed the balance of power in English government and civic life. Having dispensed with his opponents, the king became nearly an absolute monarch, formally limited by the English Constitution and Parliament, but only to the extent that the people’s representatives were willing and able to oppose his wishes. The fewer the checks on the power of the king, the harder it became for any individual to hold a different position from that favored by the monarch.

And all the shiftier became the political sands.

At the core of the drama is the dangerous rise of Early Modern autocratic government and how individuals react to it. More neither desires nor seeks a public conflict with Henry, who is also his personal friend. As Lord Chancellor, he tries scrupulously to follow the law and refuses to take positions he believes are not justifiable according to legal precedent or logic. He will not swear a false oath. In that he differs from most other officeholders, some of whom adopt the king’s domestic and diplomatic agendas for substantial material gain. Others concur publicly with the king because they would rather not rock the boat. As More’s friend the Duke of Norfolk says:

“You’re behaving like a fool. You’re behaving like a crank. You’re not behaving like a gentleman….We’re [the nobility] supposed to be the arrogant ones, the proud, splenetic ones―and we’ve all given in! Why must you stand out?”

More’s response shows how sincerely he values integrity, the expression of one’s personhood, over political expedience:

“I will not give in because I oppose it―I do―not my pride, not my spleen, nor any other of my appetites but I do―I! Is there no single sinew in the midst of this [grabbing his shoulder] that serves no appetite of Norfolk’s but is just Norfolk? There is! Give that some exercise, my lord!”

A nation’s rule of law depends on certain basic things, such as equal justice, clearly defined statutes, enforcement of contracts, respect for property rights, and the sanctity of the oath. Dispensing with these tips the scales toward factionalism and autocracy, against the rights of individuals and citizens. A Man for All Seasons reminds us how delicate is the fabric of freedom.

(Paul Scofield won Best Actor for his role as Thomas More in the 1966 film version of A Man for All Seasons, which won six Oscars, including Best Picture. Scofield also won the 1962 Tony Award for Best Actor for the original Broadway production. Charleton Heston both directed and starred in a 1988 television movie, also based on Bolt’s play.)


Kathryn Hickok is Publications Director at Cascade Policy Institute, Oregon’s free market public policy research organization.

 

Press Release – Statement on the Supreme Court’s King v. Burwell Decision

June 25, 2015

FOR IMMEDIATE RELEASE

Media Contact:

Steve Buckstein

503-242-0900

steven@cascadepolicy.org

Cascade Policy Institute Statement on Today’s Supreme Court King v. Burwell Decision: More Oregonians will lose rather than win

PORTLAND, Ore. – The U.S. Supreme Court decision today in the King v. Burwell case is a sad reminder that the President of the United States and his Administration can arbitrarily interpret laws passed by Congress to suit their own purposes.

In this case, the Affordable Care Act clearly states multiple times in its text that federal subsidies to offset insurance premiums can only be granted to individuals purchasing policies through an exchange “established by the state.” When most states failed to establish such exchanges, the IRS arbitrarily decided to grant subsidies to individuals who purchased insurance through the federal exchange, healthcare.gov, as well. By a six to three vote, the Court told us that the President and his Administration need not follow the language of the law because in the Court’s opinion that could cause harm to the intent of the law which was to make insurance more affordable.

How this decision will affect Oregon is fairly clear. Oregon originally set up its own state-established exchange, Cover Oregon. But when that $305 million project failed to sign up one person for insurance on its flawed website, the Cover Oregon board voted to scrap the exchange and migrate Oregonians over to the federal exchange, healthcare.gov. Board members didn’t seem to care how this decision might impact subsidies for Oregonians, and after the fact said they were relying on federal assurances that they considered this arrangement a “supported state based marketplace”—meaning that it would still qualify for subsidies even if the Court were to rule opposite of how it ruled today.

What is clear now is that today’s decision could actually harm more Americans, and more Oregonians, than it helps. According to a March 3rd press release by Michael Cannon of the Cato Institute and Cascade Policy Institute’s Steve Buckstein, “If subsides are denied under a King ruling, Oregon will join the majority of states in reaping benefits.” Now that the King ruling has found for the government, the Cato Institute believes that “approximately 157,000 [Oregon] individuals likely will continue to be subject to the law’s individual mandate requirement,” and 890,000 working Oregonians “also will continue to be subject to the employer mandates that are putting downward pressure on our economy.” These negative results stem from the ACA’s provisions that as long as subsidies make insurance somehow “affordable,” then the act’s mandates to purchase it remain in place.

Cascade Senior Policy Analyst Steve Buckstein says, “Today’s Court decision does not end the discussion about who should control your health care and who should decide what, if any, insurance you must purchase at what price; but it does push that discussion farther into the future. It unfortunately postpones our ability to move toward a more individual, patient-centered health care and health insurance world. Oregonians who watched their state government bungle an expansive insurance exchange project using other people’s money should be a big part of this discussion.”

Will the Supreme Court’s Ruling on Subsidies Be ObamaCare’s Downfall?

By Sally C. Pipes

The battle over ObamaCare has shifted to the courts. This time, the president is on the defensive. Last month, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled 2-1 in Halbig v. Burwell that the federal government lacks the authority to provide subsidies to offset the cost of health insurance to folks shopping for coverage on HealthCare.gov, the federally run exchange. The federal government has since asked the full Circuit Court to hear the case.

The same day that the D.C. Circuit panel issued its ruling, the Court of Appeals for the Fourth Circuit, based in Richmond, Virginia, arrived at the opposite conclusion in a similar case, King v. Burwell, and upheld the federal subsidies as legal. The disagreement practically begs the U.S. Supreme Court to weigh in. The plaintiffs in King v. Burwell have petitioned the U.S. Supreme Court for cert. If granted, the case will go to the high court. It’s unlikely that the high court will hand down a decision until spring or fall 2015.

The D.C. Circuit panel has the law on its side. Should the Supremes agree with them, then ObamaCare could quickly unravel. And if it does, Congress should be ready with a replacement health care reform plan that empowers doctors and patients, not the federal government.

The Affordable Care Act’s text is unambiguous about how the insurance exchanges are supposed to work. According to the law, federal subsidies are available through exchanges “established by the State.” Thirty-six states didn’t set up exchanges. In some cases, their elected leaders decided not to. Other states tried to build their own. In many cases—among them Oregon, Maryland, Vermont, and Hawaii―they failed.

The law provided that the federal government would step in if the states did not. As a result, the federal government has found itself running an exchange that serves more than two-thirds of the states. And it’s decided, based on the counsel of the legal eagles at the IRS, to ignore those four words— “established by the State”—in order to dole out subsidies.

Even as it sided with the federal government, the Fourth Circuit observed, “If Congress did in fact intend to make the tax credits available to consumers on both state and federal Exchanges, it would have been easy to write in broader language, as it did in other places in the statute.” The court, which ruled for the government, went on to say that it “cannot ignore the common-sense appeal of the plaintiffs’ argument; a literal reading of the statute undoubtedly accords more closely with their position.”

ObamaCare’s supporters argue that “congressional intent” justifies direct federal subsidies. But they’ll have a tough time proving that before the Supreme Court. An early version of the health care reform bill did include an explicit authorization to distribute subsidies through a federal exchange. But it was absent from the final version.

That’s a problem for the Obama Administration, as U.S. Supreme Court precedent holds “that Congress does not intend sub silentio to enact statutory language that was earlier discarded in favor of other language.” Or as another Supreme Court decision put it, “the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.”

If the Supremes forbid the Obama Administration from distributing subsidies through the federal exchange, the law will crumble. That’s because many, if not most, exchange shoppers will be unable to afford policies without subsidies. As more and more people go without insurance, the exchange pool will skew sicker and premiums will head higher.

Already, average monthly premiums for a mid-level silver plan are $324. They’ll rise 8 percent next year, according to Avalere, a consulting firm. Eighty-seven percent of the people in the 36 states that rely on the federal exchange are receiving subsidies. Without those subsidies, premiums for some 5 million people will spike dramatically. The disappearance of subsidies would also destroy the employer mandate, which requires employers with more than 50 full-time workers to provide insurance coverage.

Fortunately, there are other ways to expand access to affordable insurance. Subsidizing insurance does little to encourage insurers to rein in premiums. In fact, if distributed as a percentage of premiums, subsidies can reward them for hiking prices. Expanding competition among insurers, by contrast, can make insurance more affordable and drive down costs. Creating a truly national marketplace—where Americans could purchase health insurance across state lines—would do just that. There’s no reason insurance should cost 2.5 times more in Rhode Island than in Alabama.

Allowing individuals to purchase health insurance tax-free—just as those who have employer-sponsored insurance through their work can—would also make coverage more affordable. Most Americans get health insurance through their place of work. So they have little incentive to consume care judiciously. After all, they’re not paying the bill. Increased usage of the health care system leads to higher overall premiums.

Two years ago, ObamaCare’s individual mandate survived before the U.S. Supreme Court. The law’s exchange subsidies may not be so lucky.

Sally C. Pipes is President, CEO, and Taube Fellow in Health Care Studies at the Pacific Research Institute in San Francisco. She is a guest contributor for Cascade Policy Institute. A version of this article was originally published by Forbes.

Policy Judgment on Health Care Law “Is Reserved to the People”

By Jason Mercier

The Affordable Care Act is constitutional in part and unconstitutional in part.”

With these words, the Chief Justice of the U.S. Supreme Court John Roberts, in a 5-4 decision, removed the policy fate of the federal health care law from the hands of judges and placed it squarely in the lap of voters this fall to decide what happens next.

Depending on your perspective, Roberts’ decision was either an example of judicial restraint or, as the four Supreme Court Justices who dissented wrote, “carries verbal wizardry too far, deep into the forbidden land of the sophists.”

Either way, the Chief Justice repeatedly made it clear that the Court was not passing judgment on the “wisdom or fairness” of the federal health care law or if it “embodies sound policies.”

Roberts explained, “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.”

Perhaps it should be no surprise that a vast law that has deeply divided the country and barely passed Congress on a party-line vote would be decided by just one vote in a 5-4 opinion by the Supreme Court.

It is also somewhat fitting that the law about which then-Speaker of the House Nancy Pelosi said Congress “[has] to pass the bill so you can find out what’s in it, away from the fog of controversy” would contain a tax on Americans who don’t buy a product the government wants them to, which no one knew was in the bill until the Supreme Court ruled on it.

This, despite the promises made by President Obama proclaiming to the public that he “absolutely reject that notion” that the proposed health insurance mandate was a tax. Despite these public statements, the President did, in fact, argue to the Court that the mandate was a tax (after first telling the Court it wasn’t on the first day of arguments). This two-faced defense of the law proved to be its saving grace, as otherwise the Court would have tossed the individual mandate and the law as a violation of the Commerce Clause.

After winning the legal debate by arguing the health insurance mandate was instead a tax, the President is back to telling the American people it isn’t a tax but a penalty. The White House proclaimed after the Court’s 5-4 ruling, “It’s a penalty, because you have a choice. You don’t have a choice to pay your taxes, right?”

The one choice we do have is to decide what happens next.

Some would have the Court’s decision be the last word on the policies of the federal health care law. While it is in the legal sense, to paraphrase Winston Churchill, the Court’s decision is not the end. It is not even the beginning of the end; but it is, perhaps, the end of the beginning of the policy debate.

Placing the ultimate decision on the fate of the federal health care law back in the hands of voters, Chief Justice Roberts wrote, “The Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits. The Court does so today. But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”

This November, we the people will have the opportunity either to affirm the policies of the federal health care law or to pursue a different direction.

Jason Mercier is director of the Center for Government Reform at Washington Policy Center in Olympia and a guest contributor for Cascade Policy Institute, Oregon’s free market public policy research center. Washington Policy Center’s 10th Annual Health Care Conference on July 10 will focus on the next steps for state policymakers on implementation of the Affordable Care Act.

Supreme Court Upholds Constitutionality of ObamaCare – Not its Efficacy

“The U.S. Supreme Court’s ruling that most of the Patient Protection and Affordable Care Act (ObamaCare) is constitutional means that Congress now has power to do virtually whatever it wants,” says Steve Buckstein, Senior Policy Analyst and founder of Cascade Policy Institute, Oregon’s free-market think tank. “But having the power to write health care rules and actually improving our health care system are two very different things.”

“By finding that the individual mandate cannot stand under the Commerce Clause, but can stand when looked at as a tax, the Court essentially seems to be telling Americans that while Congress cannot control every aspect of our behavior, it has virtually unlimited powers to tax us and spend the money as it sees fit.”

“Moving more control over health care to Washington, D.C. means that Oregonians, and citizens of every state, will have even less control over our own health care decisions. Big, centralized government systems mean higher costs, less access and less innovation in one of the most important areas of our lives,” Buckstein added.

Buckstein concluded that, “Now that the Court has failed to limit the role of the federal government in health care, it is up to Congress and the states to try to do so. The better chance for a lasting health care system fix involves empowering patients rather than marginalizing them. It involves giving them choices, and letting them do the inevitable rationing themselves, even if part of the money comes from public sources.

“Today’s Court decision was a step in the wrong direction, but Cascade Policy Institute will continue working to reaffirm that in America personal liberty is a cornerstone, not an afterthought, of our way of life.”

Union Members Can’t Be Forced to Pay for Political Activities

By Victoria Leca

Last Thursday the Supreme Court rejected the idea that public sector unions can charge non-members for political activities.

It was a 7-2 decision, and the practice was struck down on First Amendment grounds. The majority opinion held that while employees can be required to pay dues for the direct benefits they get from the union, they cannot be forced to give money to unions for political activities.

At first the Service Employees International Union offered refunds to employees who were non-members and who disagreed with the political cause the union was promoting, but the Supreme Court ruled that the individuals had to choose to “opt-in” to the payment.

The workers who do not join unions should not be forced to pay for the union’s political activities. The fact that the Supreme Court majority decided that the worker has to opt-in to paycheck deductions, rather than opt-out of these payments, restores protection of individuals’ right to free speech and property.

Coming on the heels of Governor Scott Walker surviving his recall election in Wisconsin, this is one more victory for the rights of workers to be independent of union control. Workers shouldn’t have to join a union to have the right to work, and they certainly shouldn’t be forced to make political contributions against their will.

Victoria Leca is a research associate at Cascade Policy Institute, Oregon’s free market public policy research organization.